Sri Lanka

Lord Naseby: asked Her Majesty's Government:
	What assistance they are offering to the Government of Sri Lanka following the recommendations of the All-Party Representative Committee in that country.

Lord Malloch-Brown: My Lords, we support the efforts of the All-Party Representative Committee to devise a political solution to the conflict and remain ready to share our experiences of devolution. We believe that full implementation of the 13th Amendment, including funding for regional councils and greater emphasis on official use of the Tamil language, can be a step forward, but we would welcome more fresh thinking from the committee on a just settlement that satisfies the legitimate aspirations of all communities.

Lord Naseby: My Lords, that is a very encouraging Answer. However, as the noble Lord knows, we have a new high commissioner there. Is it not rather disappointing that our aid to Sri Lanka through DfID is, I understand, to be reduced just when the eastern province needs help in educating Tamil policemen and the child soldiers who have been taken out of warfare? Finally, is it not also a great problem that we have 20 bogus Tamil Tiger front organisations in this country? The Tigers are a proscribed organisation. Should we not be doing more to stop the millions of pounds that are going from this country to continue that war?

Lord Malloch-Brown: My Lords, as to the noble Lord's second point, he was with me at a meeting with the British Tamil constituents of a number of Members of Parliament. I think he will recall that I gave very clear advice to those Tamil UK nationals that we thought it utterly inappropriate for them to contribute in any way that might be used to provide military arms for terrorist activities in Sri Lanka. I am happy to have his full endorsement of that point.
	On the noble Lord's first point about DfID assistance, the DfID programme to Sri Lanka has largely ended because of the country's income level. The debt relief component of it is a special case but the fact is that a combination of concerns about the country's human rights and income level have indeed led to a sharp reduction in the DfID provision for Sri Lanka.

Lord Avebury: My Lords, is not DfID making a contribution to the Common Humanitarian Action Plan, which fears that half a million people may need assistance later in the year? Does the Minister agree that at least a limited devolution of power to the north and east would do something to mitigate the polarisation of the two communities, even though it would be better to insist that the all-party committee recommendations are published by at least April, even if the parties cannot all agree on them? Can the Minister say what we think about the development of a more politically powerful contact group, as recommended by the International Crisis Group?

Lord Malloch-Brown: My Lords, the humanitarian assistance that we provide will not in any way be changed because of the situation in Sri Lanka. We provide assistance through the Global Conflict Prevention Pool and want to participate in the humanitarian action plan, although, as I said, we have no bilateral aid development programme.
	On the second point about devolution of powers, local provincial government and our support for that, we think that is all moving in the right direction. Our fundamental concern is that there is not a sufficiently ambitious political initiative through the APRC or through other means to offer the prospect of a political solution to the problems of the country.

Lord Howell of Guildford: My Lords, my noble friend Lord Naseby has just circulated a very interesting report on Sri Lanka, following his visit there, in which he points out that there is a threat of EU sanctions against the garment trade in Sri Lanka for various reasons—good or bad—which would have a devastating effect on the country generally at a very sensitive time. Will the Minister assure us that we will use all influence that we can in the European Union to prevent ill-timed sanctions of this kind damaging poor Sri Lanka more than it has been damaged already?

Lord Malloch-Brown: My Lords, the issue of the garment trade and the EU is a trade matter as well as a political one. On the trade side, we have been anxious that countries such as Sri Lanka do not suffer disruption because of changed EU international trade arrangements. There need to be managed changes in such regimes.
	On the broader point, we are concerned about the escalating human rights difficulties in the country and the lack of an adequate political way forward. The EU, like us, is following that. At the moment, our activities are focused on trying to improve human rights monitoring of the situation in Sri Lanka, not on sanctions. That is a position that the EU shares with us. I join the noble Lord in congratulating the noble Lord, Lord Naseby, on his excellent report.

Lord Dholakia: My Lords, the Government of Sri Lanka have already announced that they are prepared to hold unconditional talks with the LTTE. In light of that, what are we doing in this country to ensure that proscribed, and related, organisations are not collecting funds for the purchase of arms to destabilise that process?

Lord Malloch-Brown: My Lords, I slightly take issue with the noble Lord about the unqualified nature of the Government's willingness to sit down and talk to the LTTE. I wish it were that straightforward. We would press the Government for a wholehearted political initiative and to resist the danger of believing that there is a military solution to the problem. Seeing many of our colleagues from Northern Ireland in the Chamber today, I shall repeat that we have been impressing on the Government the need to learn from some of our experience in Ireland as regards finding a political way of resolving this conflict. I say again that the LTTE is a proscribed organisation here and in Europe at large and, therefore, people should not be knowingly contributing to its military activities. It is wrong and illegal to do that.

Baroness Northover: My Lords, I want to follow up on the final question asked by my noble friend Lord Avebury. Will the Minister comment on whether there should be deepened co-operation—this is the recommendation from the International Crisis Group—between India, the EU and the US, with the goal of eventually developing a more politically powerful contact group? Will he comment on that please?

Lord Malloch-Brown: My Lords, I thank the noble Baroness for giving me an opportunity to answer that part of the noble Lord's question. In general, Sri Lanka has been protected by its genuinely democratic character. It has a Government who were elected through the ballot box. That has meant that its neighbours, as well as the EU, have held back a little from forming a contact group or bringing direct pressure to bear and have relied on the Norwegians to provide a mediation function. Unfortunately, that is now at an end. It is an idea that merits serious attention, whether a powerful friends' group might help both sides to begin the much-needed serious dialogue to resolve these issues politically.

Afghanistan

Lord Blaker: asked Her Majesty's Government:
	What recent changes they have made in their policy towards Afghanistan.

Lord Malloch-Brown: My Lords, I refer the noble Lord, Lord Blaker, to the Statement made by my right honourable friend the Prime Minister in another place on 12 December 2007, in which he outlined the UK's long-term comprehensive framework for security, political, social and economic development in support of the Government and the people of Afghanistan. The framework entails greater ownership by Afghan people of institutions and responsibility for their own security; localisation and reconciliation building for the creation of a democratic constitution; and reconstruction and development to ensure that more Afghan people have an economic stake in their future.

Lord Blaker: My Lords, the Statement by the Prime Minister was so comprehensive that I do not think that I need to elaborate on it here. However, two subjects are giving continual trouble. The first is caveats made by countries that are sending troops to the north of Afghanistan, whereby in the sectors described those troops are not to take some actions, such as, in the case of Germany, flying aircraft at night. That sort of thing is a very bad example. It is already having an effect on the Canadians, who have been doing a wonderful job in Afghanistan but are now talking about withdrawing their troops if that practice continues. The second subject is opium, which pervades the whole of Afghan life and has a debilitating effect. I hope that a solution to the opium problems can be reached before long.

Lord Malloch-Brown: My Lords, on the noble Lord's first point about caveats, I share his concern. This caveating of peacekeeping operations is sadly not limited solely to ISAF and Afghanistan. We see a similar problem in Darfur. Countries that commit troops to peacekeeping have to give the generals in charge the freedom to deploy troops as needed to do the job required, so it is a matter of concern. However, there are differences between the caveats of different countries; it is a complicated situation. Let me add to what the noble Lord has said. Canada has suffered an almost unprecedented level of casualties relative to the number of troops that it has deployed and badly needs support if it is to continue to carry out its vital task in the south of the country. I renew our plea to other countries to provide additional troops for that function.
	As to opium, perhaps one of the most promising pieces of news is the announcement in another place of a new anti-drugs strategy here in the United Kingdom. We have to press the message that an opium economy needs customers, and too many of them are here in the UK. We have to combine effective interdiction and alternative crop strategies in Afghanistan with licking this problem of demand here in the United Kingdom.

Baroness D'Souza: My Lords, a group of us from this House were told by an Afghanistan expert that the invariable answer from the Afghan population to the question what or who are the Taliban is that a Taliban is someone who is unemployed. What are the Government doing to promote business ventures in the safer areas of Afghanistan for employment and economic growth and, indeed, by what means?

Lord Malloch-Brown: My Lords, the safe areas of Afghanistan—the north and to a large extent the east of the country—have been enjoying quite a high rate of growth in recent years, which has led to significant employment generation. Much of our pessimism about Afghanistan is concentrated on the south, where the level of insecurity militates against easy job creation. We continue to push alternative development strategies in the south in agricultural and other sectors to try to create jobs. I suspect that the Afghan who offered that wise advice was a former Finance Minister who was successful in creating jobs while he was in office. We must continue to rely on such an approach.

Lord Soley: My Lords, can my noble friend confirm that the French are about to deploy a significant number of troops in the south? Am I right to say that, if they do that, it will take some pressure off that small number of countries, including us and especially, as he said, Canada, which has been taking so many of the losses in that area? My understanding is that the French are very close to making an affirmative decision. Can he confirm that?

Lord Malloch-Brown: My Lords, when I was in Paris last week, a decision had not been arrived at. There were press reports today, to which my noble friend may be referring, but it was a little unclear exactly where the troops would be deployed. We have good news, but just how good that news is is yet to be confirmed.

Lord Wallace of Saltaire: My Lords, the British Government and others are much concerned about the confusion in Kabul arising from different international agencies and foreign Governments giving their separate advice to the Afghan Government. There have been proposals for an international co-ordinator; we know that they are still in play. Are the British Government satisfied that we will get greater coherence among the Governments engaged, particularly the United States, and the various international agencies helping the Afghan Government?

Lord Malloch-Brown: My Lords, this is a rare occasion on which we are all, I suspect, genuinely sorry that the job did not go to a Liberal Democrat. It is truly a great shame that Paddy Ashdown was not appointed, because the job needed exactly the kind of dynamic and forceful leadership that he would have brought to it. We press for alternative names. It is a matter for the Secretary-General of the United Nations and President Karzai ultimately to determine, but we think that the vacancy should not be left open much longer.

Earl Ferrers: My Lords, perhaps I may ask the noble Baroness the Leader of the House whether she is aware that we all admire enormously the knowledge and capacity of her Ministers. However, could she persuade them to divest themselves of only a part of their knowledge in answer to questions? If people also asked shorter questions, we would all get on a lot better.

Baroness Ashton of Upholland: My Lords, the noble Earl said it very well.

Baroness Symons of Vernham Dean: My Lords, have there been any recent developments in the Government's policy towards women in Afghanistan? One of the most terrible manifestations of the Taliban was their policy of excluding women from economic activity and education. There have been indications of some of that creeping back in Afghanistan. Are the Government aware of that and, if so, what are they doing to stop it happening?

Lord Malloch-Brown: My Lords, I think that my noble friend refers to a report issued this week by Womankind, which indeed points to dismaying trends. This issue has been one of the great successes of post-2002 Afghanistan and we are looking at those findings with care because we would hate to see the progress undone.

Lord Lawson of Blaby: My Lords, I support the important intervention made by the noble Baroness, Lady D'Souza. It is vital that unemployment is reduced and that the economy is able to develop. Realistically, is not the only viable employment the opium crop? Is it not the view of the Senlis Council and others who have studied the matter carefully that we should change our policy on that to allow people to develop the opium crop and for it to be entirely bought up by those of us who are engaged in this war against the Taliban? It can then be converted into a non-addictive painkiller, which is badly needed in the developing world. Is that not a better strategy—and a cheaper one—than the strategy being pursued at present?

Lord Malloch-Brown: My Lords, the noble Lord refers to an idea that has much support in this House. I must say that I, too, was very open to it on coming to office. In examining it carefully, however, I should say that, although he is right to say that the opium economy is the core of much economic activity in the country, it comprises only 5 per cent of agricultural land. The view is that providing a second purchaser for that opium would expand cultivation rather than transfer it from an illegal to a legal character. It would therefore not achieve the intended purpose. Indeed, the market for natural pain-relief products of the kind that he mentions is more limited than he might imagine and the studies suggest that there would not be such a market for Afghan-produced opium.

Lord Anderson of Swansea: My Lords, how do the Government respond to the strong statements made by the Secretary-General of NATO that the very credibility of the alliance is involved in Afghanistan?

Lord Malloch-Brown: My Lords, my noble friend is absolutely correct to draw our attention to this. The credibility not only of NATO but of international peacekeeping in many ways is on the line. We have to deliver in Afghanistan.

Lord Ramsbotham: My Lords, the superb performance of the British troops in Afghanistan draws attention to the fact that only troops who have the professionalism to enable them to operate there should be sent there. Is the Minister in a position to say whether the reluctance of other nations to send troops is related to quantity or quality?

Lord Malloch-Brown: My Lords, it is true that only a limited number of armed services can provide, support and sustain the kind of troops needed for these activities, but not all of them are sharing the burden equally.

Lord Skelmersdale: My Lords, the Minister has just reconfirmed the Government's strategy of replacement crops for the opium poppy; indeed, Ministers have made this announcement many times in the past few months. Can he now tell me what alternative, high-value horticultural or agricultural crop is proposed to replace the opium poppy, which of course is high volume?

Lord Malloch-Brown: My Lords, the noble Lord might want to know that we have placed in the Library—following the request of the noble Baroness, who has similarly impatiently asked me to name the crops—the report of DfID and the World Bank, which goes through this in great detail. At the risk of boasting of too much knowledge, however, let me just say that the conclusion of the World Bank report is less about what we expected, which was specific crops, and more about the incredible dislocations in the market—the fact that you have to pay bribes to get your crops to market, and so on. The report is more about how we solve those problems than about believing that there is one particular silver-bullet crop that can be substituted.

Baroness Finlay of Llandaff: My Lords, does the Minister recognise that the so-called market for analgesics is falsely small, because so many countries are ignorant of basic pain relief and do not even allow their doctors to prescribe basic pain-relieving drugs? If this Government, as part of their economic aid to other countries, provided adequate education in pain relief, which this country has led the world on, we would see markets open up for cheap, safe analgesia. That would be one of the most humane things that we could do for the world population.

Lord Malloch-Brown: My Lords, the noble Baroness clearly has an expertise that I do not have, but I would be happy to look at that, because I did not know that it was the case.

The Earl of Sandwich: My Lords, does the Minister agree that the lack of capacity in the ministries in Afghanistan is explained partly by the poaching by the World Bank and international organisations of staff, who are offered higher salaries? What can be done to second some of these staff back to the ministries so that they are actually helping Afghanistan directly?

Lord Malloch-Brown: My Lords, the noble Earl has put his finger on an enormously difficult problem. We have just seen the staff of the Ministry of Counter Narcotics have the subsidy that we gave their salaries removed because the Afghan Government want all civil servants to be paid the same. As a result, those staff are looking for jobs as drivers and interpreters in NGOs. We have to find a solution to this, so that the Government can afford the people whom they need to work for them.

Northern Rock

Lord Higgins: asked Her Majesty's Government:
	How they propose to take over part of Northern Rock's balance sheets, but not the whole of them.

Lord Davies of Oldham: My Lords, the Government took Northern Rock plc into temporary public ownership by acquiring the company's shares and taking on its assets and liabilities. The Government did not acquire Granite and have not taken on its assets or liabilities.

Lord Higgins: My Lords, I thank the Minister for that substantive reply, but after the Government have forced through Parliament the biggest takeover ever anywhere of a failed private company, we still do not have much of the information which we ought to have. Will the Minister clarify two points arising from his Answer? First, he rightly says that the Government have taken over Northern Rock by taking over its shares, which of course own its assets and liabilities, but the Granite trust was consolidated on the group accounts of Northern Rock. How then has the Granite trust not been nationalised?
	Secondly, before nationalisation, the Government said that the Granite trust was effectively controlled by Northern Rock. Is it still controlled by Northern Rock and, if so, has it not been nationalised?

Lord Davies of Oldham: No, my Lords. The Granite companies are separate and therefore have not been nationalised. Let me make it clear to the House that the relationship between Northern Rock and Granite is paralleled in a number of building societies with similar securitisation companies related to them. The concept of securitisation is that the companies are separate from the main company. They raise their money through bond holders and it is to the bond holders that they are responsible. Granite is responsible for that, which is why the Government cannot be and is not responsible for Granite and its assets. The Government are responsible for Northern Rock.
	Lest it be thought that the Government are less than clear on these matters, which may be a reflection of competence at the Dispatch Box in my case, all these issues are clearly in the public domain on the Northern Rock website. Anyone with a keen interest in the relationship of Granite to Northern Rock has full access to the position, where they will see that the two groups of companies are separate.

Lord Barnett: My Lords, I appreciate that my noble friend is trying hard to explain exactly what has happened. But I remain, I must confess, confused. The fact is that yesterday he told us that,
	"Granite has no relevance to the public position".—[Official Report, 26/2/08; col. 553.]
	But the Chancellor, in his technical note to Vincent Cable, said—the noble Lord, Lord Higgins, has repeated it—that Granite is effectively controlled by Northern Rock. It goes on to say that Granite is consolidated in Northern Rock's group balance sheet. Perhaps I am a bit out of touch with accountancy matters, but if a group balance sheet has the assets and liabilities consolidated, how is it not part of the group we have taken over? If my noble friend does not feel able to answer a technical question, I would be happy if he would let me have a technical note explaining it in full.

Lord Davies of Oldham: My Lords, I would be happy to furnish that to my noble friend, but that might not meet the full needs and requirements of the House. The Government have taken over Northern Rock because it is separate from Granite. The fact is that Granite appears in the group accounts, but we have not taken over the group. We have taken over Northern Rock plc. Northern Rock controls Granite because Granite cannot get resources from any source other than Northern Rock. It is not getting resources at present because Northern Rock has not sold any mortgages to Granite since September 2007. These mortgages are the basis of the resources that Granite controls. Therefore, when the Government take over Northern Rock plc they have a position where Northern Rock plc is the only controller of Granite, but that does not mean that Northern Rock is responsible for the liabilities of Granite. The bond holders are responsible for that.

Baroness Noakes: My Lords, at the end of 2006, there were £550 million of liabilities in Northern Rock's Whinstone SPVs, which were intimately bound up in guaranteeing the Granite arrangements. Are those Whinstone liabilities included in the nationalised balance sheet or not? How can they be kept separate from Granite?

Lord Davies of Oldham: My Lords, I welcome the noble Baroness's return, as does the whole House. She will have detected that in her absence, various odd names have popped up in our debates. We had Dolerite last week, and I was able to dispense with it. The company she identifies has never appeared on the radar of any note that I have ever seen in relation to this issue. I assume that, like Dolerite, the noble Baroness is talking about a redundant vehicle.

Lord Newby: My Lords, will the Minister answer just one simple question? Who is the real owner of Granite?

Lord Davies of Oldham: My Lords, Northern Rock controls Granite because Granite cannot and does not function beyond the sale of Northern Rock mortgages to Granite. I repeat, Granite has not been receiving additional resources from Northern Rock since September 2007. But because of its structure, the liabilities of Granite, which are the issue of the Government's guarantee and the taxpayer exposure, are in fact the bondholders, not Northern Rock. That is why the taxpayer is not exposed to any issue with regard to Granite.

Lord Desai: My Lords, does my noble friend recall that I said at Second Reading that the Government had not bought Granite because its liabilities should not be the responsibility of Northern Rock? That explanation should have been sufficient not only for my noble friend, but for noble Lords opposite. I do not understand why they go on asking about it.

Lord Davies of Oldham: My Lords, I imagine that my noble friend has a siren voice rather than the voice of the prophet in these terms, and therefore does not carry quite the authority we need, and clearly I do not either.
	Let me reassure the House on this score. There is nothing exceptional about the Granite group of companies. Other hugely respected building societies have securitisation vehicles on exactly the same legal basis as Granite. The Government have nothing at all to hide on this issue. Let me also make the obvious point that it is only a month until Northern Rock produces its accounts and only a month until the relationship between the Treasury and Northern Rock with regard to its future is made public in the strategic plan. Given that, why on earth would the Government be involved in any exercise other than one of complete openness on what I admit is a difficult issue?

Statute Law (Repeals) Bill [HL]

Lord Hunt of Kings Heath: My Lords, I beg to introduce a Bill to promote the reform of the statute law by the repeal, in accordance with recommendations of the Law Commission and the Scottish Law Commission, of certain enactments which, except in so far as their effect is preserved, are no longer of practical utility, and to make other provision in connection with the repeal of those enactments. I beg to move that this Bill be now read a first time.
	Moved accordingly, and, on Question, Bill read a first time, and ordered to be printed.

House of Lords (Members' Taxation Status) Bill [HL]

Lord Oakeshott of Seagrove Bay: My Lords, I beg to introduce a Bill to make provision about the taxation status of Members of the House of Lords. I beg to move that this Bill be now read a first time.
	Moved accordingly, and, on Question, Bill read a first time, and ordered to be printed.

Charities Act 2006 (Charitable Companies Audit and Group Accounts Provisions) Order 2008

Lord Davies of Oldham: My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That the draft order laid before the House on 29 January be approved. 9th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 26 February. —(Lord Davies of Oldham.)
	On Question, Motion agreed to.

Criminal Justice and Immigration Bill

Lord Hunt of Kings Heath: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill. With the leave of the House, perhaps I may make a few remarks before we move into Committee.
	The first priority of the Government is to ensure public safety and it is with this overriding duty in mind that we have been considering how best to move forward with the Bill. The Government hope that the Bill will receive Royal Assent by 8 May and perhaps I may explain to the House why it is necessary to have such a deadline. The House will be aware that the Bill now includes provisions in Clauses 189 and 190 to restore the statutory provision on inducing prison officers to take industrial action. We have included such a provision in the Bill following the decision of the Prison Officers' Association, representing prison officers, to withdraw, with effect from 8 May this year, from the existing voluntary joint industrial relations procedural agreement with the Prison Service. I stress that the provisions in Clauses 189 and 190 are a reserve power. In the event of a new voluntary agreement being reached between the POA and the Prison Service, the Bill provides for the statutory prohibition on industrial action to be suspended.
	We are taking this action to ensure that protections are in place to avoid disruption to the prison estate of the kind we witnessed on 29 August last year. While our preferred solution has been and remains for a negotiated non-strike agreement with the POA, I regret that recent events mean that it is unlikely that any such agreement will be reached in the foreseeable future. The POA special delegates conference on 19 February passed by an overwhelming majority a motion mandating that any further agreement must not constitute a no-strike agreement, nor should it prevent the campaign to fight to regain full trade union rights. It is the Government's continued hope that the ongoing Ed Sweeney talks will enable more positive engagement between the POA and the Prison Service. However, given the position adopted by the POA at the special delegates conference, it is clear that we cannot responsibly allow for a gap between the termination of the existing voluntary agreement and the statutory bar on industrial action taking effect.
	The loss of a scheduled Committee day on 20 February to the Banking (Special Provisions) Bill has not helped us to maintain the progress necessary to ensure that Royal Assent is secured by 8 May. In these circumstances, my right honourable friend the Minister of State for Justice, Mr David Hanson, and I have in the past few days been discussing through the usual channels with our Front Bench opposites and their counterparts in the other place how we can speed up passage of the Bill. Noble Lords will be already aware that we have withdrawn Parts 4 and 5 from the Bill, but we have now concluded that it is necessary to withdraw further provisions from the Bill so that we can achieve Royal Assent in good time.
	Accordingly, I wish to inform the House that we will be withdrawing the provisions relating to criminal appeals in Clauses 42 and 43 and to the prostitution provisions in Clauses 123 to 125. In addition to withdrawing those provisions, we will be bringing forward amendments, either in Committee or on Report, to address matters which have been raised on other parts of the Bill. I am grateful to noble Lords from all sides of the House for their assistance. I hope that we can make the necessary progress so that the Prison Service can continue to operate without fear of disruption from 8 May.
	Moved, That the House do now again resolve itself into Committee.—(Lord Hunt of Kings Heath.)

The Earl of Onslow: My Lords, normally when Governments get themselves into a pickle people say to them, "Yah, boo, sucks. You've made a mess of it". I think that when Governments get themselves into a pickle and then get themselves out of it, one ought to congratulate them and say, "Well done for taking a sensible course". So perhaps I may say, "Well done the Government for taking a sensible course".
	I am slightly disappointed because preferably my noble friend Lady Stern, who is not in her place, or myself would have liked to be involved in these discussions for the simple reason that we have been deeply involved with the Joint Select Committee on Human Rights, which has had, I hope, a serious influence on the Bill. It would have been quite helpful had we been kept in the loop. However, well done the Government for not going on digging. Let this be an example to Conservative Governments in the future.

Lord Kingsland: My Lords, I shall make no observations about my noble friend's intervention. We quite understand the reasons why the Government wish to get their Bill by 8 May. We are extremely pleased that they have decided to drop Clause 42 which, as the Minister well knows, we regard as deeply pernicious. We also think the Government are wise to drop Clauses 123 to 125, which concern certain aspects of prostitution. However, we would be dismayed if next year, which will almost inevitably be a year of yet another Criminal Justice Bill, we should find these provisions reappearing in exactly the same form. We would like to think that the Government's change of heart on these matters is not just a tactical manoeuvre but a genuine reconsideration of the merits of what they have done.
	As to all the other matters, we will wait and see what amendments emerge from the Government. It is impossible to commit ourselves one way or other. As the Bill makes its way through the Committee stage, no doubt we shall find the Government's new position gradually revealed. We are particularly interested in violent offender orders, which we think, in their present draft, are deeply defective. We will be looking to the Government for some fundamental changes if they are going to have anything other than an extremely rocky ride. I am grateful to the Minister for his statement.

Lord Thomas of Gresford: My Lords, I am not as generous in this matter as the noble Earl, Lord Onslow, and noble Lords probably do not expect me to be. This is just how not to legislate. The Bill started off in the House of Commons with about 139 clauses and on to that skeleton were piled topic after topic. When it came to Report, a further 200 clauses and amendments were introduced by the Government that the other place had no time whatever to debate so the ship steamed to this House leaking in every way. The Government are now throwing over the ballast; they threw away Parts 4 and 5 at the very beginning, and now they are throwing away more parts of the Bill and we will have further amendments in due course. This is an object lesson in how not to overload a Bill and how not to try to push through any idea that has come into the head of the Home Office or the Ministry of Justice in the way in which the Government have tried to do.

Lord Lloyd of Berwick: My Lords, I, too, want to say how glad I am that the Government have dropped, in particular, Clauses 42 and 43. I echo what the noble Lord, Lord Kingsland, said. I hope that they will not come back next year, but in case they do, I intend to keep the speech I would have made this afternoon.

Lord Wedderburn of Charlton: My Lords, I preface my question with my congratulations to the Government on pressing this matter forward and in the hope that the talks with Ed Sweeney will provide a voluntary answer to the question of industrial action. Having said that, I ask my noble friend—he need not answer now—to consider the legal problems involved in the new formula in Clause 189(2); namely, the illegality of taking or continuing to take industrial action. I give my full support to the Government in pressing the Bill to the statute book. I was going to speak on that clause, but shall not now do so when it passes through the House.

Baroness Miller of Chilthorne Domer: My Lords, the Minister will know, because his noble friend Lord West was at the meeting, that there was concern all around the House about the clauses on prostitution. I am sure that that feeling will be echoed on all sides of the House. I hope that the Government will use the intervening time to come forward with a proper Bill based on complete research. The Government were part of the way through: they have completed a strategy; Ministers have visited Sweden; they have not visited New Zealand to see an example of different practice. I hope that when they bring back a Bill it will be in a more complete form.
	I also make a plea to the Government that they think again about the extreme porn clauses. They would benefit enormously from pre-legislative scrutiny, which would enable us to discuss them in a far more considered and necessarily sensitive atmosphere before they were brought on to the Floor of the House.

Lord Henley: My Lords, I am slightly confused. The Minister has told us that Clauses 42 and 43 will be dropped, which I presume means that the amendments which the noble and learned Lord, Lord Lloyd, and others have tabled will not be debated. We do not have even a manuscript amendment from the Government at this stage. Will we debate the amendments of the noble and learned Lord, Lord Lloyd? Perhaps the noble and learned Lord will not move them. The situation creates confusion, because we want to know how far the Minister thinks we will go today. I ask not only as one active on the Bill, but as a former Business manager. It is an important question. Will we get on to Part 7, where we will move on to completely different subjects from those in Part 2, to the end of which we will come fairly soon? We will then have Parts 3, 4 and 5, some of which the Government introduced in the Commons and then removed in this House, which is another sign of the Government's confusion. I do not know how many other parts of the Bill the Government will remove. I on the Front Bench and, I have no doubt, many colleagues on the Back Benches are deeply confused as to how far we are supposed to go today, what we are supposed to do today, and where we are.

Lord Stoddart of Swindon: My Lords, if the Government are concerned to get the Bill through by 8 May, other clauses could be removed as well. Like other noble Lords, I have had a lot of correspondence about Clause 126, which was inserted in the Bill after it had been published and halfway through its passage through the House of Commons. In addition, an amendment to the clause has been tabled which is bound to take quite a lot of time. Will the Minister consider withdrawing that clause as well, which would be helpful to him?

Lord Hunt of Kings Heath: My Lords, I thank noble Lords for their generous remarks on my announcement. As on Lords reform, the noble Earl, Lord Onslow, and I once again find ourselves in agreement. I say to him and the noble Baroness, Lady Stern, who is not in her place, that one would of course wish to make sure that all noble Lords who have taken part in the Bill are kept informed. This has been a fast moving feast, but I shall do my best to take note of what the noble Earl said.
	Other matters will of course come to be discussed. Discussions are taking place in the usual channels, on which I shall be able to report in due course. I am not prepared to respond to what is not so much a shopping list as a list of things that noble Lords do not like. It would not be appropriate to respond to the specific issues that were raised by a number of noble Lords today.
	The noble Lord, Lord Thomas of Gresford, who is ever complimentary about the legislative—

Lord Stoddart of Swindon: My Lords, the Minister has asked the House to agree, virtually without any discussion, to his shopping list of matters to be withdrawn. Why on earth will he not take into account the suggestions of noble Lords from other parts of the House and from the Back Benches? Do we not have any say these days?

Lord Hunt of Kings Heath: My Lords, of course. The noble Lord has never been backward in making his views known. I did not say that I would not take account of comments made by noble Lords this afternoon. What is not appropriate is to try to negotiate across the Floor of the House on the other suggestions that have been made. However, discussions will continue.
	The Government simply seek to inform noble Lords that when, for instance, we come to the noble and learned Lord, Lord Lloyd, proposing that Clauses 42 and 43 do not stand part of the Bill, we will not oppose that. In answer to the noble Lord, Lord Henley, that is how we expect the business to be dealt with. There may be some consequential amendments as a result of the noble and learned Lord opposing those clauses, which the Government would introduce on Report. But that is how we seek to proceed. There is a little time before we reach that stage and, if there are other matters of concern, the usual channels will be available and will speak to the noble and learned Lord. I have tried to keep him informed and am most grateful to him for his co-operation.
	I think that that covers the matters raised. I am most grateful to the House for its tolerance for allowing me to explain the Government's proposals in this area.

Lord Neill of Bladen: My Lords, will the Minister be kind enough to indicate an answer to the question that has been raised on how far we are going to get? Is he planning to get as far as Clause 128, the clause in which I happen to be interested, as are the noble Lords, Lord Lucas and Lord Thomas of Gresford? When I came here today it seemed to be very well down the batting list and that we would get to it next week. Is it coming up this afternoon?

Lord Hunt of Kings Heath: My Lords, it would be very foolish of me to attempt to dictate to the House where we should get to tonight—and almost certainly the House would ensure that we did not reach it. It would be very unlikely that we would go into Part 7, if that helps. It is very difficult to give an indication of where we will get to.

The Earl of Onslow: My Lords, with every Bill that one has ever debated there is an aim. You come in and ask at the desk how long the debate is going to go on for and the desk will say that the aim is to get to Amendment No. 100, or whatever. Sometimes we hit the target and sometimes we do not, but surely the Minister—after his evisceration of the Bill—must have some idea about which amendment we will get to tonight.

Lord Henley: My Lords, perhaps I can assist the Minister. Following the interventions of the noble and learned Lord, Lord Neill, and my noble friend Lord Onslow, perhaps the Minister could give a guarantee that we would not get on to Part 7. I was going to say that we should not go beyond Part 6, but then Parts 5 and 6 do not exist any more.

Noble Lords: Oh!

Lord Henley: Sorry, my Lords, it is Parts 4 and 5 that do not exist. But I am quite happy to do Part 6 tonight, partly because no amendments have been tabled to it, as long as we do not reach Part 7. That would make life a lot easier for the noble and learned Lord, Lord Neill, and the rest of the House.

Lord Hunt of Kings Heath: My Lords, I am very happy to agree on behalf of the Government that we should not go beyond Part 6, if that would help noble Lords. Beyond that I ought not to say anything.

On Question, Motion agreed to.
	House in Committee accordingly.
	[The LORD SPEAKER in the Chair.]
	Clause 29 [Release of prisoners after recall]:

Lord Kingsland: moved Amendment No. 93:
	Clause 29, page 20, line 14, at end insert ", subject to the agreement of a Crown Court judge"

Lord Kingsland: I shall also speak to the other amendments in this group. The approach we have taken to Clauses 29 and 31 is to conclude that there is insufficient involvement by the judiciary in the decisions that have to be made. Accordingly, in the case of Clause 29 we have tabled several amendments which contain the expression,
	"subject to the agreement of a Crown Court judge",
	and in the case of Clause 31 we have inserted,
	"with the approval of the Lord Chief Justice or a judge designated by him".
	Clause 29 deals essentially with three categories of offenders. The first is offenders serving a determinate sentence for offences that are neither violent nor of a sexual nature. If such prisoners, having been assessed as not presenting a risk of harm to the public, are recalled, the Bill says that that will be for a fixed period of up to 28 days, at which time they will automatically be rereleased.
	The second group is determinate sentence prisoners serving sentences for crimes of a sexual or violent nature, or who have been assessed as unsuitable for automatic rerelease because they present a risk of serious harm, or have already served one fixed-term recall and as a result are no longer eligible for automatic rerelease. The Bill allows for such prisoners to be rereleased through two routes. In the first the Secretary of State has discretion to examine the case and determine whether rerelease should occur. That involves determining that the offender is safe to be released. A decision will be taken by the Secretary of State alone on the basis of an up-to-date risk assessment provided by probation staff. If the Secretary of State is not satisfied on the matter, there remains the option, as exists now, of the Parole Board.
	A third and final category in the amendment, which also replicates the original clause, is those sexual or violent offenders who are serving extended sentences. Such prisoners will be rereleased only if the Parole Board recommends it. If the board does not consider it safe to rerelease them following their recall, they could be held until the end of their sentence.
	At the outset I said that my main concern about the treatment of all these categories was the absence of any judicial input or discretion. That applies in two different ways depending on which category we are looking at. In the first category, which is offences that are neither violent nor of a sexual nature, what the Bill requires is too automatic; in every case, irrespective of the nature of the offence or the conduct of the individual, there will be a straightforward return to prison for 28 days and then automatic release.
	That simply does not take account of the specific circumstances of the matter. It treats all breaches as having exactly the same seriousness. There should be a discretion here for the judiciary as to whether to recall to prison and for what period. What should determine the length of the prison sentence to which the individual returns should be the nature and seriousness of the breach. Nothing in the Bill allows that to happen. On the other hand, when one looks at category 2, one finds that the Secretary of State is given an exclusive right to determine what should happen. We consider this wholly inappropriate. If somebody other than the judge should be given that discretion, it ought in all cases to be the Parole Board. As far as Clause 29 is concerned, these problems would be cured if the agreement of a Crown Court judge was required before the matter was finally determined.
	A rather different consideration is at issue in Clause 31, the explanatory title of which—"Recall of life prisoners: abolition of requirement for recommendation by Parole Board"—is misleading. Under Section 32 of the Crime (Sentences) Act 1997, the Home Secretary already has the power to recall a prisoner serving a life sentence released on licence without a prior recommendation from the Parole Board. Although the Home Secretary is normally required to follow the board's recommendation, Section 32(2) of the 1997 Act provides that the Home Secretary may recall a prisoner without a prior recommendation in exceptional cases,
	"where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable".
	Rather than enable the Home Secretary to recall life prisoners without a recommendation—a power he already has under Section 32(2)—the true effect of Clause 31 is to free the Home Secretary from the requirement to have regard to the public interest when exercising this power in exceptional cases.
	As far as I am aware the Government have put forward no evidence to show that the current provisions have ever inhibited the Home Secretary's ability to recall a life prisoner where he or she has deemed it necessary to do so. Nor is there any evidence to show that the current power to recall without a recommendation in exceptional cases has ever proved insufficient. In the absence of such evidence, we see no sound policy reason why the Home Secretary should be freed of the requirement to act in the public interest when recalling a prisoner. In the absence of such a safeguard it is clear that an elected politician would be susceptible to public disquiet and anger about individual cases. The liberty of the subject, even that of a prisoner convicted of the most heinous of crimes, is too important to be left vulnerable to such pressures. I beg to move.

The Earl of Onslow: It strikes me as bad principle that the Executive should be too involved in sentencing, especially extending sentencing. It is different if it can be classed, for want of a better word, as a prerogative of mercy; in other words, the Crown, through her servants, can show somebody mercy and reduce a sentence. But the Crown, through her servants, should not be able to increase a sentence, which is in effect what denying a release order or calling somebody back comprises.
	I am guessing a little here but I suspect that this applies to a very large number of people. I suggest that most of the decisions will be taken by officials. I make no attack on officials; they are men of honour and integrity and they make the right judgment in their view, but surely they would be acting as judges in effect. If that is the case, should this not be done by judges themselves, given all the publicity aspects attached to the judiciary because this is done in open court? For those reasons I believe that my noble friend on the Front Bench has produced exactly the right set of amendments for this occasion.

Lord Wallace of Tankerness: I support the amendment moved by the noble Lord, Lord Kingsland, and spoken to by the noble Earl, Lord Onslow. The fundamental point about the involvement of the judiciary, and not leaving it solely to the Executive, is important. As the noble Earl, Lord Onslow, indicated, there is no doubt as to the diligence and proper way in which these matters will be addressed by officials or, indeed, by a Secretary of State.
	Nevertheless, the issues require some form of judicial or quasi-judicial input and consideration. That is what I understand the amendments of the noble Lord, Lord Kingsland, to seek to achieve. Particularly on Clause 31, it is incumbent on the Minister to explain why the Government wish this measure, which would remove from the equation—at the initial stage of recall, anyway—the role of the Parole Board. The noble Lord, Lord Kingsland, has given a good analysis of the current situation. Secretaries of State are not currently fettered if in an emergency they wish to recall a prisoner on licence before the Parole Board has an opportunity to consider the particular case. That is currently open to the Secretary of State under Section 32 of the Crime (Sentences) Act 1997; although it is important to note that, in doing so, the Secretary of State must have regard to whether it is expedient in the public interest to recall without reference to the Parole Board.
	The concern on these Benches is that taking away that condition of having regard to the public interest and putting these matters entirely in the hands of the Secretary of State without prior reference to the Parole Board gives too much power to the Executive without proper oversight from either the judiciary or the Parole Board. That is not an appropriate power to be given to the Secretary of State. The important point for the Government to answer is what mischief, concern or problem they are seeking to address through this. Are the provisions under Section 32(2) of the Crime (Sentences) Act 1997 not adequate to address situations where there is a degree of urgency in recalling a prisoner—that is, revoking a licence and recalling someone to prison?
	Before we give that unfettered power to the Secretary of State, a case must be made for it. The best thing to do would be to leave the law as it is. However, if the Government insist on the clause in this Bill, the kind of judicial oversight proposed by the noble Lord, Lord Kingsland, would be an important check on the Executive. However, the Government have a duty to explain to the House the reason for Clause 31.

Lord Elystan-Morgan: I have some sympathy with the amendment of the noble Lord, Lord Kingsland. I appreciate that, in an ideal world, judicial decisions should never be made by non-judicial personnel. That has never worked out in practice. As far as the Home Office is concerned, quasi-judicial decisions have very much been a part of its role all along. One only has to think back to pre-1965 days, when the Home Secretary had the ultimate discretion to commute a sentence of death to one of life imprisonment. One can hardly think of a judicial decision that so blatantly belonged more to the judiciary than a politician.
	There is some lack of consistency here, which is not something one could often hold against the noble Lord, Lord Kingsland, who is normally so perfect in his remorseless and unremitting logic. In this situation, however, we have a case where a person is already within the bounds of a sentence. Within the scope of that sentence, he has already been released. Further along the line, he has committed some breach of licence and been recalled, not by a judge, but by the Home Secretary. If in fact there was an overwhelming case for a judicial person to intervene here, it would be surely at that stage—the stage of the recall. The infraction for which the prisoner is responsible may, indeed, have been fairly trivial and borderline, but the Secretary of State—in practice, a skilled and senior official—will determine whether he should be recalled. Once you have allowed that to take place, surely it is not illogical to allow the release after recall, still within the bracket of the totality of that sentence, to be determined by a non-judicial officer—although one trusts that in his semi-judicial capacity he would act judiciously.

Lord Thomas of Gresford: Would not the noble Lord think it appropriate that the civil servant who took the decision to seek recall should make his case to a judicial personage—whether it be the Lord Chief Justice or a judge appointed by him? Surely that is the way in which the system works in this country.

Lord Elystan-Morgan: I do not think that there would be anything contrary to principle for that to happen, but it would be much more important in the first place—in the determination of whether a person should be recalled—rather than at the latter stage. At that latter stage, the non-judicial officer would undoubtedly have before him or her a vast array of reports that better enabled a decision to be made on the safety of releasing that person—more than when making the original decision about recall. Furthermore, I cannot speak for current circuit judges, but as a former circuit judge, I doubt very much whether they would want their desks to be cluttered by vast lists of responsibilities of this nature.

The Earl of Onslow: I am sorry to intervene again, but surely what the noble Lord has argued for in his package of sentences is that people should be recalled only with judicial oversight, rather than just at the whim of the Secretary of State. Personally, that is what I would prefer, because it relates to the great question of the separation of powers.

Lord Elystan-Morgan: The noble Earl is entirely correct in terms of pure theory and logic, but I doubt very much whether what he said could be operated in practice. The sheer burden of the totality of these decisions is not one that the present staffing of the judiciary would be able to bear. I stand to be corrected with regard to that.

Lord Thomas of Gresford: Would the noble Lord consider that this is confusion? He referred to the death penalty and the power of the Home Secretary to commute it. That was an exercise of the royal prerogative of mercy, was it not? It is really nothing to do with the sort of issue that we are discussing. Has not that system in some way percolated into the idea that a civil servant, by a stroke of a pen, can bring a person back to prison, perhaps for the rest of his life?

Lord Elystan-Morgan: The fact that it was the exercise of the royal prerogative of mercy does not affect the argument, in my respectful submission. It was one of the most fundamental decisions that could ever be made in our criminal system. It was a decision whereby all the circumstances of the case had to be brought into account, and if ever there was a decision that should have been made by the judiciary, rather than by the Administration, that was it. The fact that the royal prerogative was involved does not change the situation. For example, the old law—and, indeed, the current law—of wardship vests in a judge of the High Court powers which have been delegated by Her Majesty the Queen as parens patriae—the parent of the nation. The fact that it is an exercise of the royal prerogative does not mean to say that a judge is not entitled to act in that capacity.

The Earl of Onslow: Surely the parallel with the death penalty is false, because what the Home Secretary did not have the power to do was to say, if the man had been sentenced to life imprisonment, "No, we'll have him hanged instead". He could not increase the sentence; he could only decrease it. Those of us on this side are unhappy that the present Bill offers the prospect that the Executive can, in effect, increase a sentence, rather than decrease it. In my view, the Executive can decrease but not increase.

Lord Elystan-Morgan: We can debate endlessly on this matter; indeed, I am somewhat flattered that my remarks, innocent as they were, have been taken up and challenged by so many noble Lords. The fact is that there is no increasing or decreasing in sentence. There is the totality of sentence within which there has been, first, a licence, secondly, a breach of licence and, thirdly, a release of a person after such a breach—but all within the sentence.

Lord Hunt of Kings Heath: This has been a very interesting debate, but in debating the balance between the roles of the Executive and the judiciary we have perhaps not discussed the role of the Parole Board. That ought to provide a great deal of reassurance to noble Lords on these matters, because of the rights of persons concerned to ask the board to consider them. That is how we get the balance right between having the necessary assurances that these matters are dealt with appropriately, while having a system that is efficient and does not produce those great burdens either for the Parole Board or the judiciary if the amendments were to be accepted.
	I would say to the noble Earl, Lord Onslow, that these recalls are not to be done at a stroke of an official's pen, affecting the rest of an offender's life. All offenders have their right to have their recall reviewed by the Parole Board and, as the noble Lord, Lord Elystan-Morgan, suggested, the Executive cannot increase a sentence. A recall will be within the sentence period laid down by the court on conviction. The question is: where is the balance?

The Earl of Onslow: It is the punishment that is being increased within the sentence. Lay persons, or non-lawyers like me, at least, would see a difference between being "in nick" and "not in nick". It is much nicer not be in nick than to be there. Therefore, if that "nickdom" is increased, it counts as a punishment. I quite accept that what the noble Lord, Lord Elystan-Morgan, and the Minister are saying is technically correct, but that is how it appears to a non-technician.

Lord Hunt of Kings Heath: Well, I am a non-technician in this area, but it seems to me that one cannot ignore the conditions under which recall takes place and the criteria that have to be followed. I argue that in general that we have the right balance, although no doubt Members of the Committee will want to discuss that further.
	Perhaps I can explain the Government's intent with the clauses and respond to a number of the points raised. The noble Lord, Lord Kingsland, has suggested in his amendments a proposal to refer to the Crown Court prisoners who have either been recalled for a fixed period, or who have been assessed by the Secretary of State as safe to re-release, to consider whether the offender is indeed safe to be re-released.
	One of our concerns, as the noble Lord, Lord Elystan-Morgan suggested, is that this would be a rather slow and cumbersome process. We do not believe that the unnecessary involvement of the courts would enhance public protection, but it would place a substantial burden on the court service. For instance, to give some indication of the scale of this burden, in 2007-08 the Parole Board conducted more than 16,000 recall reviews, which is a huge number. I understand that part of the motivation is to ensure that public protection is enhanced. Prisoners serving sentences for sexual or violent offences are already automatically precluded from being given a fixed-term recall. Further, under the proposed provisions, a fixed-term recall can be given only to offenders who are not assessed as presenting a risk of serious harm.
	The initial risk assessment will be conducted by the Probation Service, which is well placed to assess the level of risk presented by an offender. The Secretary of State will give careful consideration to any assessment showing that an offender presents a risk of serious harm. Such an assessment will have a significant influence in determining whether to recall for a fixed term. Here, as a general rule, the Secretary of State would not look to take an executive decision to re-release an offender serving a standard recall if that offender was assessed as potentially presenting a risk of harm. In that case, the prisoner would be referred to the Parole Board.
	The purpose of these re-release provisions is to ensure that recall is a proportionate, preventive measure and that recalled offenders who do not present a risk of harm are not held in custody any longer than is necessary to prevent further reoffending. They are also designed to reduce the burden on the Parole Board and Prison Service and will assist in achieving the Government's stated objective to focus prison and Parole Board resources on the most dangerous offenders.
	The noble Lord's Amendments Nos. 94 and 97 would remove the power to amend the period of time that an offender must serve before being automatically re-released if given a fixed-term recall, or the period that other recalled offenders must serve before the Secretary of State must refer their case to the Parole Board. These re-release provisions are self-evidently new, and we want to monitor them closely. If operational experience demonstrates that by amending the period offenders spend in custody we can enhance public protection or improve future compliance, then we need a mechanism for making the necessary adjustment. The amendment would deny us the opportunity to amend the number of days that an offender would serve on recall or would be required to wait before being referred to the Parole Board other than by amending the Act through primary legislation. The order-making power that the amendments seek to remove is subject to the affirmative resolution procedure. The 28—day period cannot be changed without the approval of both Houses, which we believe provides a sufficient safeguard.
	Turning to Amendment No. 98, the Government recognise that recalling a life-sentence prisoner has potentially serious consequences—it could result in the offender spending the rest of his life in custody. However, the purpose of recall action is to enable the Secretary of State to take swift and preventive action in removing potentially very dangerous offenders from the community. It is a crucial means of protecting the public, but such action is not taken lightly. The test to be applied when considering recall is whether the offender presents an unacceptable risk to life or limb. Clearly that can happen at any time of the day or night, which I believe makes it impractical to involve the courts at that stage.

Lord Wallace of Tankerness: I think that there will be a lot of sympathy with what the Minister says about the need to have some swift means of recall, but what, in practical terms, has been the problem with exercising the power of the Secretary of State under Section 32(2) of the Crime (Sentences) Act 1997?

Lord Hunt of Kings Heath: The noble Lord is right that that power is used. Essentially, we are seeking to regularise the position. As he said, Section 32(2) allows the Secretary of State to revoke a licence and recall a lifer without consulting the Parole Board only where it is in the public interest to do so, not as the basic position. As most cases need action in relation to the prisoner serving the life sentence, the risk to life and limb test has to be met. We are seeking to regularise that position.

Lord Thomas of Gresford: Why would the Secretary of State want to recall a prisoner on licence if it was not expedient and in the public interest?

Lord Hunt of Kings Heath: Of course, that would be the test to be applied.

Lord Thomas of Gresford: That is the current test, so why change it?

Lord Hunt of Kings Heath: This is simply to regularise the position.

Lord Thomas of Gresford: It is regularised.

Lord Hunt of Kings Heath: It is no more than that. I shall certainly be happy to write to noble Lords with further clarification on the technical matters.
	We believe that we have the balance right between the role of the Executive and the judiciary. The balance is achieved by the Secretary of State being able to take swift, preventive action, but the safeguards are in place to ensure that the decision taken by the Executive is open to challenge by the offender and is reviewed by an independent body.
	Clause 31 ensures that every life prisoner recalled to custody will be informed of the reasons for his recall and of his right to make representations against the recall. In addition, all recalled life prisoners will be referred to the Parole Board for the recall to be reviewed. If the board considers that an offender is safe to be released, the Secretary of State must release the offender. Those are the safeguards that are built in to this mechanism.
	Amendment No. 98 would require the authorities to secure the prior agreement of a High Court judge to recall a life sentence prisoner who has been assessed by the Probation Service as presenting an increased danger to the public. The concern is that that would make the recall process slower and more bureaucratic. On the construct of the Bill, we think that we have got the balance right between the need to take immediate action, on occasions, and the safeguards that are presented by the Parole Board and the representations that can be made to it. I hope that that is a constructive response to those points.

Lord Kingsland: I am most grateful to the Minister and to all noble Lords who have spoken in this debate. On Clause 31, I understand the concern of the Minister about the potential lack of flexibility if the agreement of the Lord Chief Justice is required before action can be taken. I would like to reflect on that between now and Report. However, I simply do not understand why any change in the current situation is needed. The reasons have been very well given by both speakers from the Liberal Democrat Benches. The true effect of Clause 31 is to free the Home Secretary from the requirement to have regard to the public interest when exercising this power in exceptional cases. But, as the noble Lord, Lord Thomas of Gresford, said, why does he need freeing? In these circumstances, he can act only in the public interest and to remove that requirement would create not just uncertainty but suspicion in the minds of the public that there is some ulterior motive for the Secretary of State intervening.

Lord Thomas of Gresford: Does the noble Lord agree that if he were not acting in the public interest, judicial review would follow?

Lord Kingsland: The noble Lord, Lord Thomas of Gresford, makes another very good point. I would have thought it was very much in the Government's interest for the status quo to continue. The Secretary of State will be in no way constrained in the future from doing what he has always done in the past. Irrespective of what position the Government take on my suggestion about the Lord Chief Justice, in my submission they would be well advised to leave the current situation as it stands.

Lord Hunt of Kings Heath: As I have been advised that this is needed to regularise the position, would it be helpful and constructive if I agree to arrange for discussions on this matter between Committee and Report to enable noble Lords to consider this further?

Lord Kingsland: That is a characteristically helpful intervention by the noble Lord, and I am grateful for his having made it.
	We have two preoccupations on Clause 29. First, the Minister—this is no criticism of him—did not address the inflexibility of the 28 days. That inflexibility is a serious defect. I know that there are provisions in the Bill to extend the period or, indeed, to reduce it. However, our concern is not so much the length of the period but the inflexibility of the requirement that it should always be 28 days. We are talking about offences that are not violent or sexual.
	The second issue, which has provoked a most interesting and stimulating debate in Committee, is the appropriateness of judicial involvement and the role of the Secretary of State rather than the Parole Board. I should have thought that Secretaries of State would be rather glad not to have this responsibility. On controversial matters, the first port of call of the newspapers—the tabloids, in particular—is the Home Office. It is the Secretary of State who is under the cosh. Surely it would be in his interests to implicate either the judiciary or the Parole Board in a decision that is often extremely politically sensitive.
	I am not including just this Government in my observation; there has been a trend over, say, the past 20 years for Secretaries of State to offload certain types of activities on to so-called independent bodies—no doubt for very good reasons, but sometimes for the reason that it will relieve them from embarrassing political responsibilities. As I said, I should have thought that Secretaries of State would be rather glad not to have the responsibilities that the Government are inserting into the Bill. Apart from the jurisprudential dimensions, it is good politics to exclude the Secretary of State from these decisions. Why his role is being intensified escapes me.
	I am grateful for the Minster's remarks about Clause 31. I hope that he will also think again about certain aspects of Clause 29 between now and Report. It is important to come back to this issue on Report, but in the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Kings Heath: moved Amendment No. 93A:
	Clause 29, page 20, line 32, at end insert—
	"(8A) The reference in subsection (8) to a specified offence (within the meaning of section 224) includes a reference to—
	(a) an offence under section 70 of the Army Act 1955, section 70 of the Air Force Act 1955 or section 42 of the Naval Discipline Act 1957 as respects which the corresponding civil offence (within the meaning of the Act in question) is a specified offence, and(b) an offence under section 42 of the Armed Forces Act 2006 as respects which the corresponding offence under the law of England and Wales (within the meaning given by that section) is a specified offence.
	(8B) Section 48 of the Armed Forces Act 2006 (attempts, conspiracy etc.) applies for the purposes of subsection (8A)(b) as if the reference in subsection (3)(b) of that section to any of the following provisions of that Act were a reference to subsection (8A)(b)."
	On Question, amendment agreed to.
	[Amendments Nos. 94 to 97 not moved.]
	Clause 29, as amended, agreed to.
	Clause 30 agreed to.
	Clause 31 [Recall of life prisoners: abolition of requirement for recommendation by Parole Board]:
	[Amendment No. 98 not moved.]
	On Question, Whether Clause 31 shall stand part of the Bill?

Lord Wallace of Tankerness: I do not intend to detain the Committee, as we have had a thorough examination of the issues—

Lord Bach: I am sorry to interrupt the noble Lord. He knows from what my noble friend said that we will be looking at this again before Report. Of course I do not want to shorten any of his wise words. As long as he understands that we require the clause to remain in the Bill for that purpose, I look forward to hearing what he has to say.

Lord Wallace of Tankerness: The noble Lord, Lord Bach, pre-empted what I was going to say. I had heard what the Minister said and very much welcome it, which is why I said that I was not going to detain the Committee. However, when he engages in the consultation that he has offered us, he will see that we on these Benches—the noble Lord, Lord Kingsland, indicated his support for this position—are saying that if you remove words such as "it is expedient and in the public interest" from an existing statue, courts think that there must be some significance to their removal. We want to understand in further discussion why the words were removed and why they could not be imported into the Bill.
	As background, what is the breakdown between recalls under Section 32(1) and Section 32(2) of the Crime (Sentences) Act 1997? Is the balance that most of them are done by the Secretary of State without prior recommendation from the Parole Board? I do not necessarily expect the Minister to give us that answer today, but that will be part of the discussion. We are not aware of any great cause célèbre where the Secretary of State has found that it has been impossible to recall a life sentence prisoner where there was an immediate danger. What is motivating the Government to introduce Clause 31 and take away some of the requirements and conditions under the existing law?

Lord Bach: I will make a brief attempt to answer the noble Lord, but I hope that he will be content with the fact that we are going to look at this again. No doubt discussion will take place in the usual way.
	The problem has been that Section 32(1) requires the Secretary of State to act pursuant to a Parole Board recommendation to recall a lifer. Section 32(2) was the exception allowing the Secretary of State to revoke the licence and recall the lifer without consulting the Parole Board only where expedient in the public interest. As events have turned out—I have no figures—the vast majority of recalls for lifers have been under Section 32(2), not under Section 32(1). Concern has been expressed that, because the recalls are under Section 32(2), those who have been called back may regularly and on a large number of bases go to the court to say that it was not necessary for Section 32(2) to be used because it was not expedient in the public interest—in other words, there was no emergency. In that event, the attempt in the new provisions, which we will take away and look at again, was, as my noble friend said in answer to the previous set of amendments, to regularise what is actually happening; that was the thinking behind them. That is as far as I want to go in answering the noble Lord today.

Clause 31 agreed to.
	Clause 32 agreed to.
	Clause 33 [Removal under Criminal Justice Act 1991 (offences before 4th April 2005 etc.)]:
	[Amendment No. 99 not moved.]
	Clause 33 agreed to.
	Clause 34 [Removal under Criminal Justice Act 2003]:
	[Amendment No. 100 not moved.]
	Clause 34 agreed to.
	Clause 35 [Referral conditions]:

Lord Kingsland: moved Amendment No. 101:
	Clause 35, page 27, line 27, leave out from "occasion" to end of line 28 and insert "; or
	(iii) has previously been referred to a youth offender panel under section 16 above and a further referral has been recommended by a member of a youth offending team, an officer of a local probation team, or a social worker of a local authority."

Lord Kingsland: We now return to justice issues and referral orders in particular. Our amendment is intended to give the courts the power to make a second order rather than to give a custodial sentence. The circumstance in which we want that to happen is if a young person has previously been referred to a youth offender panel under Clause 16 and a further referral has been recommended either by a member of the youth offending team, by an officer of a local probation team or by a social worker of a local authority. I am aware that the Standing Committee for Youth Justice is extremely keen on this approach.
	As a number of your Lordships are aware, referral orders are now being used on a large scale. There are somewhere between 15,000 to 20,000 a year, and they comprise around 35 per cent of court sentences for indictable offences by young people. It is fair to say that they have operated rather well. They involve more than 5,000 trained volunteers who chair and participate in panels, diagnosing the problems that young people face and trying to identify practical ways forward that are relevant to young people's problems. Even if we allow for those who pleaded guilty, the reconviction rates for young people who have been subject to a referral order have, by youth justice standards, been good. Based on the 2005 figures, which are the latest available, one-year reconviction rates for referral orders were 44 per cent, which are the lowest for any court sentence and compare favourably with other penalties—discharges are 61 per cent, fines are 63 per cent and reparation orders are 70 per cent—let alone community sentences, which are 70 per cent, and custody, which is 76 per cent.
	When the amendment was debated in another place, the Minister, the right honourable David Hanson, objected to the option of the second order on three grounds. First, if a young person reoffends, they have clearly failed to take the restorative opportunity. Secondly, the referral order is deliberately designed to be targeted at those who receive a court sentence for the first time. Thirdly, the youth rehabilitation order introduced by the Bill, rather than a second referral order, is the appropriate next stage. In my submission, all these reasons are unconvincing.
	The first argument did not address any of the reasons why the circumstances of a first order may have been particularly inappropriate or very different. The second argument gave no substantive reason why referral orders could not be operated selectively on a further conviction and was contradicted by the Government's own concession in the same debate, which allowed a referral order on a second court appearance. The third argument did not acknowledge the unique nature of the referral order and the erratic nature of young people's offending patterns, which mean that escalation should not be the automatic response.
	Moreover, certain safeguards are built into the amendment. The use of a second referral order would be discretionary for the courts, with no obligation or presumption in favour of it. Referral order costs range up to around £1,500 and require the time of trained volunteers. The amendment would therefore limit the use to where the YOT or equivalent officer had recommended it to the court. It is they who administer the resources. In any case, if the court had to choose a YRO, this is generally unlikely to be cheaper. For all those reasons, I beg to move.

Lord Judd: I do not—I am sure that the noble Lord, Lord Kingsland, will forgive my saying this—make a practice of supporting Front-Bench opposition amendments, but on this occasion the logic of my experience leads me to strongly supporting the noble Lord's arguments. I think that I have referred before in our deliberations to the fact that, with the good offices of the Home Office as previously constituted, I visited a youth offending team and was incredibly impressed by the work that it was undertaking. The team was candid with me and made it clear that the anxieties about what might be happening to young offenders were not simply a preoccupation of academic sociologists or criminologists but were the very real concern of the people whom we charge with implementing such referral orders and tackling the front-line work. They completely shared the anxiety—as expressed informally to the Joint Committee on Human Rights, of which I was then a member, by the Council of Europe commission on human rights—that we were unnecessarily in danger of criminalising the young.
	It seems to me that lying behind what is now proposed is the inference that a referral order is a sort of soft option. I see my noble friend Lord Bach shaking his head, but I am talking about how things are perceived. It is seen as a soft option—as an alternative to a stiffer sentence by a court. Of course, as I understand it, that is not the rationale or the logic of the procedure, which is to say, "Here we have vulnerable young people who have committed anti-social behaviour and who are in jeopardy of becoming criminalised. Therefore, we must work with them as best we can to reintroduce a sense of social responsibility and social discipline so that they do not drift into criminal behaviour and become subject to the criminal court procedure".
	Here, we say that, if something goes wrong in the way that a particular referral order is being handled with the young person concerned and a breach of some kind occurs, there is no alternative but to push that young person into the criminal procedure. The youth offending team, to which we have entrusted the responsibility of working to prevent the criminalisation and to effect the rehabilitation of the youngster, may be arguing hard and saying, "In this particular circumstance, yes, there has been a breach but there really is a chance of getting things back on to a steady course", rather than simply and unimaginatively saying, "There is no alternative now but to commit the person to the criminal procedure".
	The trouble about what is now proposed is that it undermines the enlightened, sensible logic of what we did by introducing such orders. I hope therefore that my noble friend can say something positive and reassuring in answer to this amendment. As we keep saying, and I will not tire of saying, in our deliberations, surely our objective must be the rehabilitation of the young person. Of course society must be protected, but the rehabilitation of the young person not only matters in terms of that young person, but is the long-term way to protect society. If we jeopardise it all by thrusting those young people into the criminal procedure, we are in danger of turning them into hardened offenders with all kinds of costs and hazards for the community down the line. It is just a most mistaken and unimaginative approach. I hope that my noble friend can say something reassuring.

Lord Ramsbotham: It would be presumptuous to add to what the noble Lord, Lord Judd, has said beyond that I strongly support this amendment. As has been said many times throughout our debates, when dealing with young offenders we are looking at ways of raising the threshold to avoid them being taken into custody and considering what we can best do to prevent custody becoming the option. So it is, if you like, lateral thought which brings me to support the proposal. When I think of all the things that can help in the process just outlined by the noble Lord, Lord Judd, two of them are continuity of instruction and continuity of help from people who have begun to establish a vital relationship with these young offenders—that is never easy but needs to be given the vital word "time" in order to work. Underlying this amendment is an opportunity not just to push custody further away, but also to provide more time for the most important people in this process, those working with the young, to do more to help them live a law-abiding and useful life.

Baroness Linklater of Butterstone: I, too, heartily support the amendment moved by—I shall persist in calling him my noble friend—the noble Lord, Lord Judd, and spoken to by the noble Lord, Lord Ramsbotham. The amendment recognises one of the essential qualities of a young person's offending: it is essentially chaotic, impulsive and not thought through. The mistake currently being made in the legislation is neither to allow for that nor offer a measure of flexibility to those people with responsibility for managing, helping and dealing with these young people; namely, the youth offending team officer or other person. This is an important safeguard. Those working with these young people are the ones who know them well and are therefore in the best position to advise whether they should be given, if you like, another chance.
	The noble Lord, Lord Kingsland, has already given us figures to show how extremely successful these orders can be, and another positive aspect is that youth offending panels, to whom young offenders are referred back, also engage young people's communities in what is going wrong. That creates an important dialogue which in turn makes possible the kind of restorative alternatives that have been suggested. For all these reasons, it is important that the Government should look at this seriously once again.

Baroness Butler-Sloss: The wording of the amendment, which I entirely support, has an important limitation to it which is important from the Government's point of view. You can go back to the youth offender panel only if a member of the youth offending team approves it, thus limiting the provision to those youngsters whom the youth offending team thinks should continue to be worked with. In those circumstances, in this limited form, the proposal is admirable. I hope that the Government will take it on board.

Baroness Howe of Idlicote: I, too, support the amendment for all the reasons already outlined, and I agree particularly with the noble Lord, Lord Judd, in his view that much more still needs to be done to prevent children and young people being taken into custody. We must never forget that they are at a very vulnerable stage and can be turned back from their anti-social behaviour if we pick the right moment. I hope that we can get the Minister to take this on board because it is provides an alternative way of dealing with young offenders. The quoted 44 per cent success rate with this approach is much higher than any of the alternatives, and that adds to the reasons why I wish to support the amendment.

Lord Bach: I am grateful to noble Lords who have spoken and, in particular, to the noble Lord, Lord Kingsland, for moving his amendment.
	Amendment No. 101 seeks to allow a court to make a second referral order on the recommendation, as the noble and learned Baroness reminded us, of a member of the youth offending team, a probation worker or a social worker. The legislation currently allows only one referral order to be made. We do not believe that we should allow a second referral order if one has been made previously and I shall try to explain why.
	We have introduced a range of out-of-court disposals for juveniles that will be engaged long before they reach the point of a referral. Indeed, Clause 98 introduces the youth conditional caution which will provide an additional out-of-court option to the existing reprimand and final warning. It is also possible for a young offender to receive either an absolute discharge or a conditional discharge before the court stage, where a referral order comes into play. In other words, before a young offender gets to the point of receiving a referral order, he or she may have committed several offences of a fairly serious nature. We do not have a problem with that if the out-of-court disposals and discharges have been used appropriately.
	It is our aim and the aim of everyone who has spoken in the debate to keep children and young people out of the formal court process. But when they enter the formal court process, it is essential that we keep the confidence of the public, even with young people, in rigorous and effective community penalties. The referral order is available for a range of offences, some of which are serious as they include imprisonable or custody offences. Allowing a second referral order may result in legitimate criticism that repeat offenders are not being dealt with effectively.
	I shall remind the Committee of the circumstances in which an offender receives a referral order. At present an offender must generally be given a referral order if, first, the offence is imprisonable; secondly, he pleads guilty to an offence and any connected offences; thirdly, the offender has not previously been convicted of an offence; and, fourthly, the offender has never been bound over to keep the peace. An offender may be given a referral order in similar circumstances where the offence is not imprisonable or more than one offence has been committed, whether imprisonable or not, and the offender pleads guilty to at least one.
	We have made a change in the Bill that will allow a referral order to be made on a second conviction if a referral order has not been made before, but we do not believe that we should extend it further. It is a part of the challenge to achieve the balance required in the youth justice system between providing sentences that meet the needs of young people who offend and, at the same time, providing reassurance to victims and the public that the offender will be dealt with effectively. We believe a second referral order is a step too far.
	My noble friend Lord Judd, in a typically effective way—as he always does in these kinds of arguments to the Committee or to the full House—talked about a breach leading to a referral order being necessarily revoked. It is true that a breach of a referral order may lead to it being revoked, and thus to resentencing, but, as I understand it, a breach of a referral order does not necessarily lead to the order being revoked. What we are talking about here in most cases is another offence committed by the offender. So we are not talking about breach; we are talking about another offence committed by the offender.
	The referral order involves a restorative justice approach. We believe that it is right that all first time guilty pleas for young people who are before the court—they may have committed a number of offences and not been dealt with by the courts—should have the opportunity to go through this process. Our concern is that if the young person has offended again, more intervention is needed. Therefore, we think that the course that the courts will take in those cases is more often than not the youth rehabilitation order that the Bill introduces. It is not a question of the referral order going because another offence has been committed and therefore inevitably, like night follows day, the young offender must go into custody. We believe that the commission of the other offence—which presumably will not be trivial because if it was, it would probably not come to court anyway—means that that offender needs more intervention than the referral order gives him or her. That is the purpose of the youth rehabilitation order that we have debated.

Lord Judd: The Minister is trying to take the observations very seriously, but is he really saying that teams that we regard as good enough to take the heavy responsibility of handling a referral order should have their view on how a particular individual should be treated in view of what has happened disregarded?

Lord Bach: I am not saying that. I am saying that what to do with an offender is a matter for the courts. If someone on a referral order—which is not a soft option, but a fairly tough sentence for a person who has been brought to the court for the first time and has pleaded guilty—has offended again, the court is bound to consider some course of action. We hope it will not be custody. It might be if it is a very serious offence that deserves custody, but if it is not it might be a youth rehabilitation order, which involves the people whom my noble friend praises.
	Amendment No. 102 adds a new clause which removes the compulsory conditions for a referral order. The referral order is subject to compulsory conditions to ensure that it is used as the primary, first-time sentence for young offenders who plead guilty. The referral order is available for some imprisonable offences, but we believe that all young offenders should have the opportunity to undergo referral. I hope that is supported in the Committee. Under a referral order, the young offender has to agree a contract with the youth offender panel. It will include a programme of action that may include reparations to his victim or to the wider community in rehabilitation. It may involve paying compensation, attending mediation sessions with the victim, carrying out unpaid work or participating in programmes to address alcohol or other substance abuse. It provides a restorative justice-based intervention for young offenders who are in court, primarily for the first time. We are keen to maintain this use as restorative justice can be effective for young offenders who have not previously thought about the impact that their offending behaviour has on others.

Lord Thomas of Gresford: Can the Minister help us in this situation? If a member of a youth offending team were to go to court and say, "I'm sorry, we weren't able to carry out the programme. We had a contract with the offender, and we had every hope that he would complete it, but we had no unpaid work that he was able to do, we didn't have the resources for the programme for alcohol abuse and various things have gone wrong. We think he might benefit from a second referral order", surely it should be open to the court, as a matter of discretion, to say, "If that is the view of the youth offending team, we accept it. In the circumstances you have outlined to us, we will allow a further referral order". Would that not be fair?

Lord Bach: I would expect the youth offending team to have gone back to the court earlier than that to say, "We haven't got the resources to carry out the referral order of the court". Immediate action could then be taken by the court with the young person involved. I am talking about a young offender who has committed a further serious offence—serious enough to bring him back before the courts.
	Our concern is that if one allows more than one referral order, this sentence will become compromised very quickly. Instead of the youth rehabilitation order being used as widely as we want it to be, referral orders will just be used once, twice, three or four times. Young offenders who commit further offences may need greater intervention than the referral order can possibly allow. It is a vital tool for offenders who appear before the court for the first time, whether it is their first offence or, as is more likely, a number of offences down the road. That is its value and its use, which we do not want to compromise.
	Of course the referral order has a low reconviction rate, which is excellent and why we are in favour of it. However, the practical effect of allowing a second order to be awarded just like that would be counterproductive.

Baroness Butler-Sloss: Perhaps I may refer to two of the Minister's points. First, why does what the public think matter so much on this occasion when it has not been raised on other occasions in relation to similar situations? Secondly, the Minister said that the referral order might be compromised if there were two, three or four of them. One could perfectly well deal with that by saying, "On one further occasion only", so that one could not go beyond a second referral to a third or fourth.

Lord Bach: The noble and learned Baroness, who has great experience which the Committee knows well, asked why it matters what the public think. It is important that there should be public confidence in the sentencing process, whether it concerns adults—no one, I think, would deny that it matters as far as adults are concerned—or when young people are involved, too. If the public lack confidence in the proposals that are being set out—and nearly all of them are intended to keep young people out of custody—and think that, somehow, there will never be any eventualities when young people go to custody, however much their offences might deserve it, then we are all in trouble, and the sentencing system that may then develop is something that no one, particularly anyone who has spoken in this Committee, would want to see.

Baroness Butler-Sloss: I had no intention of being understood as saying that the public's perception did not matter. I wondered why it was being raised on this occasion, when it had not been raised on others, particularly in respect of my suggestion of only one further referral. I cannot believe that that would lead the public to lose confidence in the criminal justice system for youth offenders.

Lord Elystan-Morgan: In support of the noble and learned Baroness, I say that public confidence is important—everybody accepts that. However, if the public's confidence can be won and maintained only on the basis of quite unreasonable rigidity, one surely has to temper that by the consideration of being overrigid. All that the amendment seeks to bring about is reasonable and proper discretion. The objection of the Government is based on the fundamental belief that anything other than a first referral will be utterly unjustified and represent a flabbiness of the whole system. There is no proof or justification for that.

Lord Kingsland: This is a good moment for me to respond to the Minister. I share entirely the noble Lord's observations. The more I listen to the Minister, the more I think that perhaps one reason why the Government are unhappy about this proposal is that they feel that it threatens their own flagship provision in the Bill—the youth rehabilitation order. Their view is that rather than have a second referral order, the next step should be to go to the youth rehabilitation order. However, we have strong statistical evidence that referral orders work, relatively speaking, extremely well. All that we are asking the Government to do is to build on success.
	As the noble and learned Baroness, Lady Butler-Sloss, said, the amendment contains very powerful restrictions to ensure that the provision would always be used responsibly. It would be used only on the basis of a recommendation from a member of the youth offending team, an officer of a local probation team or a social worker from a local authority. Those are responsible people and they would not make that recommendation unless they thought that there was at least a reasonable chance of a second referral order working. As the noble Baroness, Lady Linklater of Butterstone, said, not only does it often take a lot of time and painstaking planning to put a referral order package together, but they may be dealing with people who have a chaotic lifestyle. The relationship between the individual and the team is one of great sensitivity and requires enormous input by dedicated parties, so they will not recommend a second order if they think that it will not work.
	A number of noble Lords, including the noble and learned Baroness, Lady Butler-Sloss, took the Minister up on his concern that it might seem that repeat offenders were not being dealt with effectively if there was an option of a second referral order. To that there are at least two responses. First, considerations about youth justice matters are not the same as considerations about adult offenders. That is a matter of this country having entered into a range of international obligations by which we abide. Secondly, the only reason for providing the option of the second order is because in some circumstances it would be the most effective way in which to deal with repeat offenders, rather than all the other options, including the YROs.
	The Opposition feel that this is a really important issue for the Government and we are dismayed that they feel unable to give any ground on the matter. I do not think that the amendment needs any refining. If I may say so, I think that it has the balance exactly right, and we shall certainly return to it on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 102 not moved.]
	Clause 35 agreed to.
	Clauses 36 to 39 agreed to.
	Schedule 5 [Youth default orders: modification of provisions applying to youth rehabilitation orders]:

Lord Bach: moved Amendment No. 102A:
	Schedule 5, Transpose Schedule 5 to after Schedule 7

Lord Bach: I hope this government amendment will be less controversial than the last one I spoke to. The amendment simply ensures that the schedules in volume II appear in the right order. I am sure that it has been spotted by many noble Lords on reading volume II that Schedule 5, which is introduced by Clause 39, should appear after Schedule 7, which is introduced by Clause 23. Consequential numbering will also be needed. This will be done by printing should your Lordships agree to the amendment. This is not an otiose amendment; there was no other way to put this right other than by tabling an amendment. I beg to move.

Lord Henley: I offer my congratulations to the noble Lord on his non-otiose amendment putting the various schedules to rights in terms of transposing them. Once again I have to say that the Ministry of Justice seems to be in a state of total and utter chaos on the Bill. The noble Lord, Lord Hunt, shakes his head. We have already, as I think I pointed out at Second Reading, seen the Government introducing vast numbers of clauses in another place, some as late as Report, and removing some of those clauses when they brought the Bill to this House. They had to have the poor Minister make a statement to the House at the beginning of today's proceedings to announce that he is removing Clauses 42 and 43 and possibly others, and no doubt more will be coming later. Perhaps the noble Lord, Lord Bach, will be able to say something about that when he comes to respond. Now we have the correction of transposing one schedule with another.
	I hope that in future years the Government, when they bring forward yet another criminal justice Bill—if they do—might have learnt their lesson. They might have listened to the noble Lord, Lord Elystan-Morgan, and the advice he offered yesterday, given to him by a former Member of this House and a Permanent Secretary of the Home Office. It is not always wise to bring in as much criminal justice legislation as the Home Office used to, and the Ministry of Justice seems to do now. If the Ministry of Justice could act just a little slower over the years and offer a bit more consideration to all its legislation, it would make the job a lot easier for this House and the another place, and it would make life a lot easier for all the practitioners throughout the legal world.
	I do not want to go on too long. I wonder whether the noble Lord has any further comments to make about what the Ministry of Justice would or would not like to do with future criminal justice Bills.

Lord Bach: What a delight it is to hear the noble Lord, Lord Henley, speaking from the Front Bench in Committee. What a shame we are not hearing more from him. That is really my only comment. The noble Lord should be a little careful when he talks about criminal justice Acts. If I remember right—I know it is some time ago now—the Government of whom he was a leading member all those years ago passed a large number of criminal justice Acts in their time, and the remarks that the noble Lord, Lord Elystan-Morgan, made yesterday were meant to refer not just to the Government of whom I am pleased to be a member but to the one of whom the noble Lord, Lord Henley, was happy to be a member.

Lord Henley: I was only a very minor cog in that machine. I accept the noble Lord's remarks and what he said about the remarks made yesterday by the noble Lord, Lord Elystan-Morgan; namely, that they referred to both Governments. But does the noble Lord not agree that this Bill has reached a new level of farce that has not been achieved by the Home Office, as it used to be, or the Ministry of Justice for many years? It is way beyond anything that has ever happened before and now to have this wonderful government amendment changing one schedule for another really does take the biscuit. The noble Lord need not blush. He can get up and just say "Mea culpa" or "Department mea culpa", but this is not very good, is it?

Lord Bach: I do not agree that this is the worst Bill, or whatever the phrase was that the noble Lord used.

Lord Thomas of Gresford: I have known many more of this Government's Bills which were just as bad as this one.

Lord Bach: I criticised the former Conservative Government's criminal justice Acts and the noble Lord, Lord Henley, criticised this Government's criminal justice Acts. However, I am afraid that we cannot criticise the criminal justice Acts introduced by the Liberal Democrats as there have been none for many years.

On Question, amendment agreed to.
	Schedule 5, as amended, agreed to.
	Clauses 40 and 41 agreed to.

Lord Fowler: moved Amendment No. 103:
	After Clause 41, insert the following new Clause—
	"Meaning of "disability" in sentences for aggravation related to disability
	In section 146 of the Criminal Justice Act 2003 (c. 44) (increase in sentences for aggravation related to disability or sexual orientation) for subsection (5) substitute—
	"(5) In this section the meaning of "disability" is as defined in the Disability Discrimination Act 1995 and the Disability Discrimination Act 2005.""

Lord Fowler: In the absence of the noble Baroness, Lady Gould, I move Amendment No. 103 which is as self-evident as Amendment No. 102A, and I know will be accepted by the Government in that respect.
	The amendment introduces a new clause and is supported by the National AIDS Trust and the Terrence Higgins Trust, of which I am a trustee. In recent years the Government have legislated to deter hate crime. Section 146 of the Criminal Justice Act 2003 requires courts to treat as an aggravating factor in sentencing the fact that the crime was motivated by, or the perpetrator demonstrated, hostility based on the disability of the victim. This was an important legislative provision because it clearly signalled the unacceptability of disability-related and sexual orientation-related hate crime in our society and established the importance of the issue for the police, the Crown Prosecution Service and the courts. But the problem is that the Criminal Justice Act 2003 was enacted before the changes in disability discrimination law in the Disability Discrimination Act 2005 were introduced. The definition of "disability" in the Criminal Justice Act 2003 is that of "physical or mental impairment". The Disability Discrimination Act 2005 extended the definition of "disability" to include people with HIV effectively from the moment of diagnosis, irrespective of whether the illness had progressed to the point where physical impairment had occurred.
	There were important reasons to extend disability discrimination law in this way. On the whole the discrimination experienced by people living with HIV has little to do with the degree or visibility of impairment but simply with the fact that there has been infection, and with that has come related social stigma. This is as true of hate crime as it is of other less extreme forms of discrimination. The Criminal Justice Act does not therefore at present provide for HIV-related hostility to be an aggravating factor in sentencing in the majority of cases. That is because—and this is a good thing—a high percentage of people living with HIV today respond well to anti-retroviral treatment and do not experience physical or mental impairment.
	My case is therefore that this is a loophole in the law which simply needs tidying up. When the Disability Discrimination Act 2005 was introduced, the need to amend the Criminal Justice Act 2003 was overlooked. I make this point in what could otherwise be a rather dry and legalistic argument: it is not just a technical or minor matter. HIV-related hate crime is a real social evil in this country and the Government would be taking forward their commitment to tackling stigma and discrimination of this kind in supporting such an amendment.
	The National AIDS Trust has provided me with two cases. The first is that of a 36 year-old man living in the Midlands on a housing estate. He had been diagnosed HIV positive for four years. After falling out with his long-term partner, his status and home address were exposed when a card appeared in a local shop window warning parents that he was "an AIDS carrier" and that they should keep their children away from him. A few days later, he came home from work to find two people in his flat. They beat him with chair legs, putting him in hospital for six days.
	The second case is of a woman who lived in London. She was originally from the Democratic Republic of Congo and attended a group at a local centre for women from that country, particularly focused on childcare. As it happens, she made the mistake of making a comment about her status. The group consequently became hostile to her and one of the women there grabbed her youngest child and physically threw her out of the room, telling everyone there that she would give them AIDS. She was later threatened and, the night before she was moved to another area, two people pushed her door in and threw pieces of wood and dirt at her in front of her children, saying that she was dirty and should go back home to Africa to die of AIDS.
	My point is that this is in no sense a theoretical issue, which is why the noble Baroness, Lady Gould of Potternewton, has tabled this amendment. People with HIV need to know that hate crime against them will be taken seriously, and that it will be recorded, monitored, investigated and prosecuted. A legal framework which ignores HIV-related hate crime seems unlikely to motivate an effective response from law enforcement authorities. It is worth noting that the current guidance on hate crime published by the Association of Chief Police Officers in 2005 makes no mention of HIV-related hate crime in its 104 pages.
	I hope that the Government will recognise that there is a loophole here. I urge them to update this aspect of the law to the benefit of many people in this country. I beg to move.

Lord Bach: I thank the noble Lord, Lord Fowler, on behalf of the Committee for moving the amendment in the name of my noble friend Lady Gould. He has done so briefly, if I may say so, and will attract a lot of sympathy. If he was implying that the Criminal Justice Act 2003 definition was meant to follow the Disability Discrimination Act 1995—that seemed to be his implication, and if it was not, I shall not go on—the Criminal Justice Act 2003 always had its own definition that did not include all of the definition in the 1995 Act.
	The amendment seeks to amend the definition of "disability" in Section 146 of the Criminal Justice Act 2003, to bring it into line with the definition in the Disability Discrimination Act 1995 and its successor Act in 2005. Section 146 of the Criminal Justice Act makes motivation by hostility against disabled persons an aggravating factor in sentencing. The aim of the amendment is to ensure that crimes motivated by the victim's HIV status are covered by Section 146. The 2003 Act currently defines disability as,
	"any physical or mental impairment",
	whereas the two disability discrimination Acts specify that disability includes those with cancer, multiple sclerosis and HIV-positive status.
	I take the point that if we retain the current definition for the purposes of the 2003 Act, it will not necessarily include those suffering from these conditions, which do not always necessarily significantly impair the sufferers' physical or mental functioning. Of course we are sympathetic to the plight of those who are or may be victimised on account of their HIV status, and it is fully understood why this amendment has been brought before the Committee. However, we do not believe that the amendment is necessary and we would go a bit further and say that it could have some undesirable consequences. I shall do my best to explain why.
	First, it is not axiomatic that the definitions of disability in each Act should be brought into line. The Acts are for different purposes. The Disability Discrimination Acts relate to economic discrimination and civil authority duties that are civil law matters. The Criminal Justice Act obviously deals with crime. Officials from my department have been in touch with officials from the Department for Work and Pensions, which has responsibility for the disability discrimination Acts. They confirm that the definition of disability in those Acts was developed for the particular purposes of those Acts and took into account the sort of employment issues covered. But the position has always been that the disability discrimination Acts' definition of disability was devised for the purposes of civil rights and that the definition is not necessarily appropriate for use in other contexts.
	The definition of disability as drafted for the 2003 Act was designed to address the mischief of hostility and consequent crime directed towards those whose disability may make them immediate targets. It was not intended to cover the broader spectrum of those who do not suffer an impairment but may face hostility and crime for other reasons. That spectrum could be much broader than is suggested in the amendment, and we are concerned that it may be counterproductive to attempt specifically to list all such instances. We also believe that those with HIV-positive status, who would not specifically be caught by Section 146, are protected by other sections of the Criminal Justice Act—as are other minority groups which are not specifically mentioned in Sections 145 and 146.
	Section 143 of the Criminal Justice Act 2003 obliges the court to sentence based on seriousness, which is assessed on the basis of culpability and harm. Section 172 obliges the court, when sentencing, to have regard to guidelines set by the Sentencing Guidelines Council. Since its establishment in 2004, we have been developing the role of the council in ensuring appropriate sentencing through aggravating factors, guidelines and so on, rather than resorting to primary legislation in all cases to deal with these issues. So the situation has changed since the statutory aggravating factor of disability-related hostility was introduced.
	In December 2004, the council published a guideline on assessing seriousness, which lists aggravating factors that indicate greater seriousness. Those include
	"hostility toward a minority group",
	and the particular vulnerability of the victim, which may be relevant in hate crime cases. It should also be noted that the courts must consider harm in assessing seriousness; particular harm can be caused by hate crime as it is divisive and may cause wider fear and distress than untargeted crime and more distress to the individual victim. So I argue that the first of the two moving cases to which the noble Lord referred would undoubtedly be covered by other sections of the Criminal Justice Act 2003, given the intention and state of mind of the perpetrators of those offences.
	Our belief is that, given the statutory obligations on the courts to look at these matters in sentencing, there is protection against forms of hate crime that are not specifically mentioned in Sections 145 and 146 of the 2003 Act. If that is right, we believe that it would be counterproductive to try to amend the Criminal Justice Act to include all forms of targeted crime that could be deemed hate crime; it could lead to groups being excluded from protection if they were not specifically mentioned in statute.
	Where any statute sets out a very specific list of cases covered, that can be problematic in that it can fail to keep pace with the changes in society and can inadvertently act to exclude almost equally good cases. As a general principle, less specific legislation may work better to protect the public. Our fear is that adding very specific cases to the coverage of Section 146 may lead to other cases that could currently rely on the more general protection of the Sentencing Guidelines Council's aggravated factors being forgotten or excluded. It would be unfortunate if we went down that road and inadvertently—completely by accident, as it were—made matters worse for other sections of the community which may suffer as the victims of hate crime.
	Of course, it is vital that we remain vigilant about any issue that may result in unfair discrimination or in the law impacting unevenly, but in this particular case, while we agree fully that people should not be discriminated against on HIV-related grounds, I believe that the existing law provides appropriate protection and that it would not be desirable to change it as suggested.
	Finally, although we believe that sentencing powers are adequate, we accept that there may sometimes be a question of the courts' awareness of the issues—those who support this amendment may have that in mind. I understand that the Equal Treatment Advisory Committee, a committee of the Judicial Studies Board, recently received a general presentation by the Race for Justice advisory group on hate crime and is now considering what training issues may arise in that area. Although I know that that does not answer the amendment, we would be happy to raise the points it makes with that committee if the noble Lord thinks it appropriate.

Lord Fowler: I certainly thank the Minister for giving such a full reply; certainly, I would welcome anything that can be done in this area, and I am sure that the noble Baroness, Lady Gould, would say precisely the same. The trouble with his argument is that there is a definition of disability in the Criminal Justice Act 2003 of physical or mental impairment; it is true that we would be adding to it, but it is already there and the courts have to observe it.
	There is one point that perhaps the Minister does not entirely take on board. I suspect that discrimination or hate crimes against people with HIV are some of the most serious, if not the most serious, examples of what takes place. I gave two cases but I am sure that if I spoke to people at the National AIDS Trust, the Terrence Higgins Trust or many of the voluntary organisations around this country, they would give very many examples of discrimination and of what amounts to more than discrimination—violence—against people with HIV. I know from experience that that is the case. I think it is fair for those of us who take this view to say that society should give the clearest possible sign that we deplore these attacks and that we will do everything in our power to prevent them and fight against them.
	As I said, I am not entirely convinced by the Minister's reply. I should like to study it in detail with the noble Baroness, Lady Gould, and we may well come back on Report. However, in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 42 [Amendment of test for allowing appeals: England and Wales]:
	On Question, Whether Clause 42 shall stand part of the Bill?

Lord Lloyd of Berwick: I wish to oppose the Question whether Clause 42 shall stand part of the Bill.

Lord Davidson of Glen Clova: I can confirm that Clauses 42 and 43 will not stand part.

Lord Lloyd of Berwick: There is nothing more to be said but I thought that Clause 43 would also have to be called.

Lord Elystan-Morgan: I am relieved on the one hand and saddened on the other at the Government's decision in this regard. I think that to recant was extremely proper. On the other hand, I have carefully researched what I regarded as the basis of what might have been many marvellous discussions in relation to these issues, starting with jurisprudence and ending with metaphysics. Be that as it may, I have no doubt that the Minister will now proceed to give the Committee his solemn undertaking that between now and the next general election there will be no withdrawing of the recantation in this regard.

Clause 42 negatived.
	Clause 43 [Amendment of test for allowing appeals: Northern Ireland]:
	On Question, Whether Clause 43 shall stand part of the Bill?

Lord Lloyd of Berwick: I wish to oppose the Question whether Clause 43 shall stand part of the Bill.

Clause 43 negatived.
	Clause 44 [Power of Court of Appeal to disregard developments in the law: England and Wales]:
	On Question, Whether Clause 44 shall stand part of the Bill?

Lord Lloyd of Berwick: This clause is a technical and, as I hope to show, unnecessary amendment to the powers of the Court of Appeal. The Explanatory Notes, at page 54, show that the clause is intended to deal with a narrow range of cases which have been referred to the Court of Appeal by the Criminal Cases Review Commission on the ground that there has been a change in the law since a conviction. The existing practice of the Court of Appeal in these cases is clear and unchallenged.
	When an appellant seeks leave to appeal a conviction out of time, as will almost always be the case in change-of-law cases, the court will not extend the time on the ground of change of law. Therefore, in such cases the conviction is inevitably upheld. That is the current practice and it does not need to be confirmed by statute.
	The difficulty, such as it is, has arisen where an appeal is referred to the Court of Appeal by the Criminal Cases Review Commission. In such cases, the appellant does not need leave to appeal and, therefore, does not have to apply for an extension of time so the filter, operated successfully by the Court of Appeal in other change-of-law cases, is bypassed. Such cases would then have to be dealt with by the Court of Appeal on the basis of the current law at the time of hearing the appeal. That difficulty looked as though it might become acute as a result of a decision of the Divisional Court in the case of R v CCRC—Criminal Appeal Reports, 2007—in which it was held that the CCRC was not obliged to have regard to the practice of the Court of Appeal, such as I have described, in refusing to extend time in change-of-law cases. That case, happily, has been effectively overruled by the Court of Appeal in a very recent decision in Cottrell and Fletcher. The effect of that recent and authoritative decision is or should be that the CCRC will, in future, have regard to the existing practice of the Court of Appeal in change-of-law cases and will not refer such cases where the Court of Appeal would not have extended the time.
	For those reasons, which I hope I have explained, Clause 44 will not be necessary. The problem has been solved, as such problems should be solved, by action on the part of the courts themselves and not by statutory intervention. We had some experience yesterday of what can go wrong when Parliament intervenes with the ordinary processes of the courts. It often produces very unexpected results.
	The difficulty with Clause 44 as it stands—this is an important point—is that it goes far wider than the problem that it seeks to solve. It treads on very difficult ground—I would almost say holy ground—and should not be put on the statute book without prior consideration by the Law Commission. I urge the Government, having withdrawn Clauses 42 and 43, to consider withdrawing Clause 44 also, if only to save time. It is no longer an urgent problem; indeed it is not really a problem at all.

Lord Davidson of Glen Clova: Sadly, I do not propose to withdraw—

Lord Kingsland: I am one of the signatories to opposing the Question that Clause 44 stand part of the Bill. I respectfully adopt the reasons given by the noble and learned Lord, Lord Lloyd of Berwick, as my reasons, too. I have one additional point to make on the substance of the government provision. That is in relation to Clause 45(2), which says, after the usual introduction:
	"In determining for the purposes of subsection (1)(a) whether the conviction is unsafe the Court may, if it thinks it appropriate in all the circumstances of the case, disregard any development in the law since the date of the conviction".
	Like the noble and learned Lord, Lord Lloyd of Berwick, I hope that this clause will disappear from the Bill. But, in any event, it is vital that Clause 44(2) be amended, because the discretion here given to the Court of Appeal is far too wide; indeed, it is totally unconstrained. It is not difficult to imagine situations where opting for the law at the time of the conviction or the law at the time of the consideration by the court could mean quite substantial differences between the legal situations.
	Inspired, I think, by the suggestion of Professor Graham Zellick, I propose that that subsection ought to read: "In determining ... whether the verdict is unsafe the Court may, if it thinks it appropriate in all the circumstances of the case"—here comes the addition—"and is satisfied that it would not give rise to a substantial injustice, disregard any development in the law since the date of the verdict". That would ensure that a decision by the Court of Appeal could not manifestly undermine the position of the defendant.

Lord Thomas of Gresford: The mischief of the clause as drafted is that it gives no guidance as to how the discretion of the court is to be exercised, so it causes problems to the commission. The commission has said, no doubt to the Government, that it would not know when it would be appropriate to bring forward a case. Speaking as a practitioner, I believe that trying to advise a client as to the circumstances in which the court may,
	"think it appropriate in all the circumstances of the case",
	to do a particular thing would be impossible. The words "substantial injustice" at least give some guidance as to the advice that would be given on the action that might be taken by the commission. As the noble and learned Lord, Lord Lloyd, said, that issue has now been resolved by the Court of Appeal and this clause is completely unnecessary.

Lord Elystan-Morgan: There is a further blemish in the clause, as there was in Clauses 42 and 43, which is the seeming arrogance—I do not say that in any pejorative way to the Minister—of Parliament placing itself in the position of telling the Court of Appeal what is unsafe and unjust. I cannot imagine anything that is more the apotheosis of unsafe than for Parliament to attempt to do that.

Baroness Butler-Sloss: For the reasons that have already been given, the clause should not stand part of the Bill.

Lord Davidson of Glen Clova: As I was about to say—a little prematurely, for which I apologise—I do not propose to withdraw this clause. Perhaps I can put it in context. Clause 44 amends Section 2 of the Criminal Appeal Act 1968 to give the Court of Appeal discretion to disregard developments in the law since the date of conviction. In their response to the consultation on the Bill, members of the senior judiciary commented on the implications of the existing law, which requires the court to apply the interpretation of the common law applicable at the time of the appeal rather than the interpretation that was applicable at the time of the conviction.
	The point was also raised in a recent Court of Appeal judgment. Where the person convicted applies for leave to appeal out of time, and his appeal rests solely on a development in the common law since his conviction, the court's usual practice is to refuse leave. It is in some cases referred by the Criminal Cases Review Commission that the real problem arises because there is no requirement for leave in such cases. The commission considers that it is obliged to refer a case to the Court of Appeal where, if the case were referred, there would be a real possibility that the court would quash the conviction on the strength of a subsequent change of law. That is to a degree a self-fulfilling prophecy, as once such a case is referred the court may find itself obliged to quash the conviction, applying as it must do the common law as it stands at the time of the appeal. This can happen in cases where the appellant was properly convicted under the law as it was when he was tried, sometimes a long time ago—30 years in a recent instance. The Government agree—and the Criminal Cases Review Commission does not disagree—that this is an unsatisfactory state of affairs. Our preferred solution is to give the Court of Appeal discretion to disregard developments in the law since the date of conviction.
	Let me respond to the noble and learned Lord, Lord Lloyd, and the noble Lords, Lord Kingsland and Lord Thomas, on whether the case of Cottrell and Fletcher suggests that Clause 44 is unnecessary. As one understands Cottrell and Fletcher, the observations of Sir Igor Judge about the future practice of the CCRC were obiter and there can be no guarantee that the CCRC will consider itself to be bound by them. Sir Igor Judge said in his judgment that the issue merited the attention of Parliament. We agree and, therefore, I commend Clauses 44 and 45.

Lord Thomas of Gresford: Is not the effect of this that the Court of Appeal may feel obliged to allow an appeal under current law but will then consider that it has discretion to go back to consider what the law was like 30 years ago? Its members may dig back into the realms of their personal history and remember how the law stood when they were junior counsel. This is calling on the court to do an almost impossible task: to look back and to try to judge a case by the law of the time when the case was determined. Not only that, but the discretionary element—the fact that the court does not have to do that but may if it thinks it the right thing to do—breeds complete uncertainty into the system. How does the Minister deal with that?

Lord Davidson of Glen Clova: True it is that there is wide discretion contained in the clause, but it is precisely because of the wide range of possible outcomes that one wants to have as wide a discretion as that. I respectfully disagree with the notion that this will somehow import everlasting uncertainty into the law. Inevitably, the Court of Appeal in interpreting Clause 44, if it becomes law, will set out guidance as to how the discretion is deployed in those wide-ranging possible circumstances.

Lord Lloyd of Berwick: I find it quite extraordinary that the CCRC should not have regard to the most recent decision of the Court of Appeal on this subject; that decision is absolutely clear. Furthermore, the CCRC always used to have regard to the practice of the Court of Appeal in change-of-law cases and always declined to refer to such cases until the erroneous decision to which I referred. That decision is no longer good law. All that is needed is for the Government to give the CCRC time to consider the matter and I am sure that it will come in line with its previous practice and the current practice of the Court of Appeal. On that basis, I will not press the matter to a vote at the moment, but I will certainly come back if the clause is not withdrawn on Report.

Clause 44 agreed to.
	Clauses 45 to 49 agreed to.
	Schedule 8 agreed to.
	Clause 98 [Alternative to prosecution for offenders under 18]:

Baroness Falkner of Margravine: moved Amendment No. 103A:
	Clause 98, page 68, line 39, leave out "16 and 17" and insert "under 18 years"

Baroness Falkner of Margravine: I shall speak also to Amendments Nos. 110 and 113. Amendment No. 103A would remove the restriction that the youth conditional caution would be available only for young people between 16 and 17 years of age by extending it to all those below the age of 18. The Government propose that youth conditional cautions should be available only for young people between 16 and 17 years old, who would accordingly no longer be subject to the current limit of two pre-court disposals prior to mandatory charge under the reprimand and warning scheme.
	Excluding 10 to 15 year-olds from the provisions would require the prosecution of younger children in circumstances that would result in a conditional caution for 16 and 17 year-olds. This would cause particular problems of parity in the case of co-defendants who might have had similar pre-court histories but where one was aged 15 and the other 16. In such cases, the current provisions might result in the younger child being prosecuted and therefore obtaining a criminal record while the older co-defendant would be eligible for a conditional caution.
	The current proposals are counterproductive. The available evidence suggests that the risk of a child becoming a persistent offender is related to the age at which he or she receives a first court conviction. Given that the purpose of the youth conditional caution is in part to counteract the recent rises in the numbers of children going to court, the rate of increase since 2002 in those coming to the attention of the youth justice system has been higher for children below the age of 15 than for those above that age.
	Our amendments would ensure that the youth conditional caution would be available to all those over the age of 10, and would require an appropriate adult to be present when the effect of a youth conditional caution, and the implications of non-compliance, are explained to a child under 17. The amendments have the support of the Standing Committee for Youth Justice, which acknowledges that additional safeguards may be required for younger children but considers that these could be adequately accommodated in the proposed code of practice.
	I remind the Committee that the Minister in the other place said on Report:
	"I have not ruled out considering extending conditional cautions to 10 to 15-year-olds. I want to look at the matter in more detail so I am unable to bring forward such proposals at the moment, but I hope that he will take me at my word"—
	he was responding to the amendment—
	"when I say that we are looking at that in a serious and effective way".—[Official Report, Commons, 9/1/08; col. 423.]
	I hope that the Government will indeed look at these amendments seriously and effectively.
	Noble Lords who were in the Chamber some half an hour ago will have heard the very combative exchange between the noble Lords, Lord Bach and Lord Henley, who seemed to be "up-tariffing" their ability to bring forth, as representatives of respective Governments, worse and worse criminal justice legislation. The noble Lord, Lord Bach, who unfortunately is not in his place at the moment, reminded the Committee that Liberals had not had an opportunity to bring forth any criminal justice Bills in recent years. It is true that we may not have had an opportunity to bring forth Bills in recent times, but no one in the Chamber will doubt our desire to improve the legislation that really should not be in front of us in this manner. I move the amendment in that spirit today. I beg to move.

Lord Hunt of Kings Heath: The noble Baroness introduces the question of machismo and "up-tariffing". I assure her that the fact that we are debating youth conditional cautions is a counter-argument to that. As she will know, this has received considerable support from many of the key stakeholders, and it is intended as an out-of-court disposal aimed at reducing the increasing number of young offenders taken to court for relatively low-level offences. It is therefore very consistent with the kind of arguments that we have had on youth justice on all four days in Committee.
	We have carefully considered whether we have the age range right. As the noble Baroness has inferred from the debate in another place, there are some very important considerations to this. The Government have no objection in principle to applying the cautions to the entire 10 to 17 age range. Our preference has been for a staged approach, but for that staged approach to be through primary legislation. As she suggested, and as the Standing Committee for Youth Justice acknowledged in its remarks about the use of the code, there probably are different challenges for the people in the younger age groups than for 16 and 17 year-olds.
	Some of the issues might include parent liability and responsibilities, the need for parents and carers to be present at the time of consideration and delivery, and some of the administrative procedures that might need to be involved. The Government will need to consult on some of those matters and on the appropriate level and extent of the conditions that are set out and that might take account of the younger age. We will, for instance, debate the maximum 20 hours per week when we come to another amendment. There may be different considerations for 16 and 17 year-olds than for 10 and 11 year-olds. As has been suggested, however, I have sympathy for the general principle, and I intend to bring suitable amendments on Report to deal with the issue, although we still think there needs to be a staged approach to implementation. I hope that she will consider that we have responded positively to what she proposes.

Baroness Falkner of Margravine: So that I can understand the Minister correctly, I assume from what he said about a staged approach that he will look at an earlier introduction for young people, perhaps from the age of 16 to 17 and then downwards. I am pleased with his comments in response to the amendment, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 98 agreed to.

Lord Thomas of Gresford: moved Amendment No. 104:
	After Clause 98, insert the following new Clause—
	"Use of a conditional caution
	In the Crime and Disorder Act 1998 (c. 37), in section 66 (effect of reprimands and warnings), omit subsection (4)."

Lord Thomas of Gresford: New Section 66F in Schedule 18, where this aspect of the sentencing powers is considered, provides a restriction on sentencing powers where a youth conditional caution has been given. It says:
	"Where a person who has been given a youth conditional caution is convicted of an offence committed within two years of the giving of the caution, the court ... may not",
	give a conditional discharge,
	"in respect of the offence unless ... there are exceptional circumstances relating to the offence or the offender".
	That is the restriction that the amendment is designed to remove.
	It is for the Government to make the case why such a restriction should be imposed in relation to a youth conditional caution followed by a discharge. The amendment, as proposed by the Standing Committee for Youth Justice, seeks to deal with a number of problems. There has been a substantial decline in the use of discharges from 23 per cent of all disposals for indictable offences in 1999 to 10 per cent in 2005. That is as a result of the restrictions under current legislation of no conditional discharge after a final warning has been received.
	This restriction imposed by the schedule would inevitably lead the court to impose a more intrusive penalty than would be warranted by the offending that it is considering. Conditional discharge can be a very effective sanction. For example, during 2005, reoffending within 12 months of a discharge, both absolute and conditional, was lower than that associated with any other court order or court disposal except the referral order that we discussed earlier today. It was some percentage points lower than would have been predicted on the basis of the characteristics and offending of young people given that sentence. Precluding the giving of a conditional discharge after a youth caution has been given might increase the risk of reoffending. This restriction does not apply to adults: it deals only with young people. Why should young people be treated in any different way from adults? What is the policy that lies behind this provision? I beg to move.

Lord Judd: In supporting the amendment in the sense that I hope it will receive serious consideration by my noble friend, I should like to make a point to which we alluded yesterday. We have to be wary of everything adding up to an apparent culture against the young. The question that the noble Lord, Lord Thomas of Gresford, has just put is very important. What is the rationale for treating young people differently?

Baroness Stern: I should like to add my voice to that of the noble Lord, Lord Judd, in respect of this very sensible amendment and would be grateful for the Minister's assurance that I have understood this. The situation is that the court has a range of options that it can use, depending on what the person in front of them has done and what the right outcome for what that person has done would be. In many cases, the percentages show that the courts use a conditional or an absolute discharge because their view is that what has been done is not serious enough to merit a more punitive sentence.
	We read often nowadays of young people being brought to court for extremely minor offences. An example came to my attention of a child who was charged with false imprisonment for locking another child in a garden shed for 10 minutes as part of a disagreement between them about sweets, DVDs or something. I understand that the courts are seeing more and more cases of extremely minor offending, if one wants to call it that, but one might just call it behaviour. They deal with that by imposing an absolute or a conditional discharge, recognising that something happened but that there was not a great deal of damage.
	As I understand it, that cannot be done for two years after a child has had a conditional caution. If that is the case, it is an absurd law. I very much hope that the noble Lord, Lord Thomas of Gresford, will push this in order to reverse the situation, if I have understood it correctly. I look forward to the Minister explaining to me that I have got it wrong.

The Earl of Onslow: I understood the situation to be exactly how the noble Baroness, Lady Stern, described it. If you add that to the fact that some children are not even represented in court—I can conceive that it is only too easy that a child who is prosecuted for locking one of his mates in a garden shed would not probably get represented in court—the possibility of him not having a conditional discharge, or the police being given a rollicking for being so stupid as to bring the charge in the first place, which is possibly more sensible, not to allow the courts to have that flexibility is back to one's old friend "up-tariffing" again.

Lord Hunt of Kings Heath: The very fact that we are discussing youth conditional cautions is a reflection that we wish to see as much action and activity as possible to prevent young people having to go to court and all the consequences from it. We have to recognise—

The Earl of Onslow: I really do not understand that. A conditional discharge is given once to a child. Within two years that child comes back and a conditional discharge now cannot be given. How on earth does it follow that this will stop people coming to court?

Lord Hunt of Kings Heath: The point about the youth conditional caution is that it is an out-of-court disposal aimed at reducing the increasing number of young offenders taken to court for relatively low-level offences, which is the point raised by the noble Baroness, Lady Stern. The amendment proposed by the noble Lord, Lord Thomas, would repeal subsection (4) of Section 66 of the Crime and Disorder Act 1998, which prevents a court imposing a conditional discharge on a young offender where he or she has received a final warning in the previous two years, unless there are exceptional circumstances. Where the court believes that there are such exceptional circumstances, it must state in open court that it is of that opinion and the reasons for believing that to be the case.
	The circumstances in which this arises are that the provision reflects the fact that we are talking about a young offender who may already have received several out-of-court disposals in the form of a reprimand for a first offence, a warning for a second offence and, potentially, a second warning for a third offence, if two years have passed since the first warning was delivered. Additionally, under the provisions in the Bill they might also have received a youth conditional caution. The likelihood is that the young person to whom we are referring has appeared in court after possibly admitting guilt to three or four offences. The warnings and the youth conditional cautions may well have had interventions and conditions attached to them, yet the young person has gone on to offend again.
	In those circumstances where a young offender has appeared in court for the first time, despite the failure of the interventions to which I have referred, it does not seem right for a court to be able to impose yet another relatively minor sanction on the young person unless it believes that there are exceptional circumstances which make it the right thing to do.
	By having appeared in court despite previous out-of-court disposals, a young offender has surely shown that something else is likely to be needed. Our worry with the amendment is that if you allow a conditional discharge within two years of receiving a warning or a youth conditional caution, it sends the signal that, even if you are brought before a court and convicted, after going through that process you may get a relatively minor sentence. There will always be a balance between wishing to have interventions that will work and will prevent reoffending, and showing young people that we are serious, which is why we have that condition.

Lord Mayhew of Twysden: What balance is achieved by discriminating in this way against young offenders? This policy does not apply, I understand, to adults. Why not?

Lord Hunt of Kings Heath: Clearly, there will always be differences between the adult criminal justice system and the youth criminal justice system, which are reflected in the different arrangements. In relation to adults we are talking about potentially a very long period of time, whereas with children it is a much shorter period of time. The emphasis is on getting over to young people that, although there is a hierarchy and there are opportunities not to offend with the kind of warning systems and the youth caution system that we are now discussing, ultimately, when that has not worked, the courts have to take serious action.

Baroness Stern: I want to make sure that I have understood the Minister. I believe that we are talking about relatively minor offences because this concerns cautions and discharges. I am assuming that at no point in the two-year period has the offending progressed to stabbing or attacking people in the street. Is there nothing in the Minister's brief about young people's offending and the fact that most of them stop doing it at a certain age regardless of our interventions? Indeed, they are more likely to stop if we intervene as little as possible on the criminal side and as much as possible on the social reintegration side.

Lord Hunt of Kings Heath: I do not disagree with the noble Baroness that early interventions aimed at preventing reoffending are preferable, but one has to show young people that there is a serious intent in all we seek to do. The point is to get the balance right in this, and we think that the general measures we are discussing will achieve it.

Lord Thomas of Gresford: Why does the Minister think it is necessary to micromanage the way in which magistrates reach their decisions? Why can it not be left to the courts to make sensible decisions, having regard to all the circumstances of the individual offender and the nature of the offence? Why does the magistrate have to look up new Section 66F set out in Schedule 18 to the Criminal Justice and Immigration Bill and, having done all that, look to see whether there are any exceptional circumstances? Surely we have to trust magistrates, as we have done for centuries, to come to the right decision. There is no reason to suppose that they are failing in their responsibilities in this regard.

Lord Hunt of Kings Heath: In view of what I said yesterday, I am certainly not going to suggest that magistrates are failing in their duties; of course they are not. But equally there is always a balance to be struck between what is set out in statute in sentencing guidelines and the discretion of the magistracy. As the noble Lord has said, there is a power to give a conditional discharge in exceptional circumstances, but we also think it is right that Parliament can set a framework in which that happens. That is why the Bill is as it is.

Lord Thomas of Gresford: The Minister has said that people have to take a message from this Bill. Which youngster is ever going to pick up this Bill when it is enacted and say, "Oh, I am in danger of not getting a conditional discharge unless I can come up with some exceptional circumstances"? The person whom the offender will be looking at is the magistrate or possibly the district judge—although we probably do not get into Crown Court territory here. The magistrate is the person who will give the message to the offender about what he has done and how he should behave, not a piece of legislation.

Lord Hunt of Kings Heath: In Kings Heath we talk of little else than the Criminal Justice and Immigration Bill. Of course I do not expect young people to avidly read the legislation passed by Parliament, but it influences sentencers and all those involved in the Probation Service and youth offending teams, and thus over time becomes known by young people. They pass through the hierarchy of a reprimand for a first offence, a warning for a second offence, potentially a second warning for a third offence and potentially a youth conditional caution, and then they come before the court, at which point they know that it is serious. That is an important message which balances our general intent to act and intervene in ways that keep young people out of court as much as possible.

The Earl of Onslow: We all know that when you go to court, it is serious; everyone absolutely understands that. But I want to underline what has been said by the noble Lord, Lord Thomas of Gresford. For heaven's sake, leave minor hooligans in trouble for throwing stones or generally being faintly stroppy, as let us not forget we all were in our youth—the noble and learned Lord, Lord Goldsmith, may not have been—to the magistrates, the people who can see the child in front of them. As has been said, let us not micromanage this.

Baroness Carnegy of Lour: When we discuss the issues surrounding young people, the Government do not seem to recognise the fact that young people change quite fast as they mature. The noble Lord is a family man himself so he knows that very well. The young person being dealt with in one year may be a completely different person by the next. His attitude may change profoundly. Young people simply do not ask what is going to happen next in terms of the law. Indeed, the noble Baroness, Lady Linklater, pointed out earlier that many young people are in a rather chaotic state at this point in their lives, and much depends on the way they are feeling at that moment. To give a young person another chance is something that we keep talking about but that the Government seem not to want to do, which makes me think that they spend far too much time reading the tabloids and too little time studying the development of young people.

Baroness Howe of Idlicote: I am finding all this quite unbelievable. As my noble friend said earlier, we are not dealing with something like a stabbing, but with minor offences. As every other noble Lord has said, the magistrates already have discretion in this regard and they are the ones who have daily contact with the experts around the court and the offender. Surely we should be happy to leave the discretion to them and not impose further conditions that make it almost certain that we shall imprison more young offenders.

Lord Hunt of Kings Heath: I am not sure where we are going with this. I disagree strongly with what the noble Baroness has just said. This is not aimed at putting more young people into custody. I—

Baroness Stern: I am sorry to interrupt the noble Lord and I know that he wants to bring this to an end. Of course no one is suggesting that the Government are doing this because they want more young people to go to prison than at the moment. However, when an analysis is made of how we have reached the position where many more young people go to prison here than in comparable countries, one of the reasons is that we have a system which pushes young people into more serious areas of the law rather than the systems in many other countries which keep them as far away as possible. They do that because it gives young people the best prospect of growing up into law-abiding citizens.

Baroness Butler-Sloss: I wonder whether the Minister will listen to what is becoming a consensus of the Committee so that perhaps the Government will rethink the wording here.

Lord Hunt of Kings Heath: The noble and learned Baroness is always persuasive in her arguments. Of course I listen, but if I say that I will take the amendment away, the Committee would probably read too much into that. The point of developing youth conditional cautions is to keep young people out of the courts and out of custody. They would be one of a number of weapons at our disposal, along with reprimands and warnings. The balance to be struck is that, having placed an emphasis on pre-court disposals, one has to ensure that young people know that there are consequences if they do not work. That is the balance. This is not a matter of responding to the red tops because to me it is just plain common sense.

Lord Thomas of Gresford: I did not say that the Government are responding to the red tops, but the noble Lord obviously thinks that that could be the motivation behind the Government's proposals.

Lord Hunt of Kings Heath: I was responding to a comment made earlier when it was unworthily suggested that the Government are influenced by the red tops.

Lord Thomas of Gresford: I may have unworthily suggested that on an earlier amendment, but not in relation to this one.
	I hope the Minister will accept that there is a fair amount of experience in this Committee in all sorts of fields. Certainly if our collective experience was put together, it might possibly exceed the experience of those who are advising him that this should be taken forward. I venture to say that it would exceed the experience of those who debated this matter in another place—if they did debate it.
	I hope the Minister will take the matter away and think about it before Report. There is a consensus in the House. Obviously we will come back to it and he will have to make a decision at that point. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Schedule 18 [Alternatives to prosecution for persons under 18]:

Baroness Falkner of Margravine: moved Amendment No. 105:
	Schedule 18, page 243, leave out lines 22 and 23

Baroness Falkner of Margravine: The amendment seeks to allow the imposition of youth conditional cautions in appropriate circumstances where the young person has a previous conviction. The adult conditional caution is available at any point in an offender's career; the Government's proposal for youth conditional cautions, however, precludes such a disposal where the young person has a previous conviction. We hold that such an approach is not compatible with equal treatment on the basis of age, nor is it obviously consistent with the requirement in the Beijing rules where,
	"consideration shall be given, wherever appropriate, to dealing with juvenile offenders without resorting to formal trial".
	The potential for co-defendants of similar age and with a previous offending history to be treated differently is instructive. An 18 year-old adult with a single previous conviction might realistically be given a conditional caution in circumstances where the criteria for a 17 year-old would require prosecution.
	The anomaly also undermines the potential of the youth conditional caution to provide a flexible response to different circumstances. Research suggests that pre-court measures are, on average, considerably more effective in preventing further offending than court-imposed disposals. The current proposals would preclude a conditional caution and require prosecution for minor matters—for instance, where the child has a single previous conviction for an offence which he or she has denied so was not eligible for reprimand or a warning, and where a young person's previous convictions relate to offences committed some years previously, irrespective of the nature of those offences.
	The amendment seeks to allow youth conditional cautions, subject to the discretion of the Crown Prosecution Service, at any point in the period of a child's criminal activity. It would address the anomaly that less favourable treatment would otherwise be required in the case of a child rather than an adult in a similar position, and it would also permit more flexible and effective responses to the particular circumstances of the young person's offending behaviour. I beg to move.

Lord Judd: In encouraging my noble friend once again to take seriously the thoughts behind the amendment, it occurs to me as a lay man in these matters that—to take his own words—what is surely encouraging for our determination to keep young people wherever possible out of prison is the maximum flexibility for the use of judgment and imagination. The more stipulations and details one writes into the conditional use of the arrangements that there may be, the more it undermines this creative approach—I am not ashamed to use the word—to the rehabilitation of the youngster. I am uneasy, therefore, about what is proposed and I hope that my noble friend can reassure us.

Lord Ramsbotham: I share this unease. I am extremely glad that on an earlier amendment the noble Lord, Lord Thomas, introduced the word "micromanagement" because what worries me about this, having spoken at length with people in the field who are involved in taking these day-to-day decisions—sometimes hour-to-hour decisions—with young people, is that they feel that legislation is circumscribing their ability to use their own initiative when the time comes. Surely this must be a very dangerous precedent. I cannot believe that it makes sense to have more and more legislation which is tying the hands of the people who have the front-line responsibility, particularly if, when taken in sum, it does not add anything to what is already on the statute book.

Lord Hunt of Kings Heath: In a sense, our arguments are the same as for the last group of amendments. Again we start with the question of whether this is a micromanaged approach or whether it provides an appropriate framework for the dedicated people in the field who will operate the system we enact. I suspect that we will not entirely agree. However, I think we all agree that we want sufficient discretion for the people in the field. I do not disagree with that at all.
	The concept of youth conditional cautions has received a broad welcome and is seen as a useful addition to the out-of-court disposals. Overall, that responds to the point raised by the noble Lord. I accept that there are arguments about how much discretion there is within the youth conditional caution system and that is what we are now debating.
	If a young person either commits a serious offence or continues to offend despite other out-of-court disposals and intervention, surely it is proper for such people to be dealt with by the court. Unless the first offence a young person commits is a serious one, the court is only likely to come to deal with the young offender where other interventions have failed to prevent him or her reoffending. As I said on the last group of amendments, a young person who comes before a court may well have received a reprimand, a warning or possibly two, and a youth conditional caution or possibly two—potentially up to five previous out-of-court disposals. Both the warnings and the youth custodial cautions may well have had interventions and conditions attached. Once they have been dealt with by a court, any further offending indicates that they are not responding to either the out-of-court disposals or the sentence imposed by the court. That is why we think it would be inappropriate to send the young offender a signal that, even when they have reached the stage of being dealt with by the court, if they offend again they will be dealt with by one of the less serious out-of-court disposals.
	It is a balance: the young person has many opportunities to do the right thing, but once a case gets to court the young offender needs to understand that repeat offending will lead to more serious consequences, not less. That, essentially, is the reason we are taking this approach.
	The noble Baroness raised again the question of adults, who can receive a conditional caution subsequent to a conviction yet young offenders cannot receive a youth conditional caution in the same circumstances. We discussed this in the last group of amendments. I know that there is an argument from the Standing Committee on Youth Justice that this is a breach of a young person's rights under the European Convention on Human Rights. However, as I said earlier, young people and adults have different needs and therefore it can be appropriate for them to be dealt with separately in a different system, which we have in this country.
	There is also the practical issue that with adults, as I said, there will be many years between the offences committed by them. The youth justice system includes a series of out-of-court diversions—and there is no argument that we want to divert wherever we can—but there has to be a cut-off point where diversion has been tried but has not succeeded. That is why we reached the conclusion that the noble Baroness has argued against. It is not a knee-jerk reaction but a considered judgment about where the balance should rise in these circumstances.

Baroness Falkner of Margravine: I heard what the Minister said, and we will reflect upon this. However, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 106 not moved.]

Lord Thomas of Gresford: moved Amendment No. 107:
	Schedule 18, page 243, leave out lines 36 to 39 and insert "a condition that the offender attends at a specified place at specified times, but may not include a condition that the offender pay a financial penalty"

Lord Thomas of Gresford: I am sorry, but I moved a little too quickly. If Amendment No. 106 could be called again, my colleague will speak.

Baroness Hayman: I am looking at the Clerk. The amendment was not moved. Please speak to Amendment No. 107.

Lord Thomas of Gresford: We are now concerned with the conditions that can be attached to youth conditional cautions, as set out in Schedule 18 to the Bill. We have already made some criticisms of these provisions, in particular the limited age at which youth conditional cautions may be given. I remind noble Lords that a youth conditional caution is a caution with conditions attached for the purposes of,
	"facilitating the rehabilitation of the offender ... ensuring that the offender makes reparation for the offence",
	and,
	"punishing the offender".
	There are a number of requirements. The offender must sign a document in which is set out the details of the offence, an admission that he has committed that offence and his consent to being given the youth conditional caution. If those conditions are breached, criminal proceedings may be instituted against him for the offence in question. He has already admitted it and has set out the details of the offence in the written statement. He will have no defence if proceedings are brought against him for the offence in question. It is therefore very important to look at the nature of the conditions that can be attached to the youth conditional caution to see whether they are reasonable and sensible in preventing his prosecution, which is what this schedule is all about.
	We object first to the condition that he pays a financial penalty under new Section 66A(4)(a). New Section 66C sets out what the penalties may be. They may not exceed £100, but the youth, as a condition of the youth conditional caution, is obliged to pay that financial penalty. We all know what that means for a youth of 16 or 17. He will not have the means to pay, so he is liable to go to his parents or to someone else to ask them to pay up on his behalf. If they fail to do that, he is in court with a cast-iron prosecution case against him. We submit to your Lordships that putting a financial penalty on these youth conditional cautions is not a sensible way to proceed. It may very well, and very quickly, lead to a breach and to the appearance of the offender in court.
	The second aspect in the conditions attached to these cautions with which we are concerned is the requirement that the youth should,
	"attend for more than 20 hours in total, not including any attendance required by conditions attached for the purpose of facilitating the offender's rehabilitation".
	He may have a condition that requires him to attend an attendance centre of some sort for 20 hours for punishment and retribution, but any attendance required for the purpose of his rehabilitation has no limit. The conditional caution might impose on him a condition that, for rehabilitation, he attends for months. That condition is again liable to be breached and to lead to criminal proceedings where his written statement and admission of the offence are the evidence before the court.
	Youth conditional cautions no doubt have their place, provided that they can properly and relatively easily be complied with. There is no point in setting up an offender to fail. The financial penalty and the unrestricted time for which he may ordered to attend for rehabilitation purposes set that young person up to fail and therefore to have to appear in court. Certainly let us have alternatives to prison and to prosecutions. Let us have youth conditional cautions, but subject to conditions with which a person of 16 or 17 can reasonably comply. I beg to move.

Lord Ramsbotham: Following on from what the noble Lord, Lord Thomas, said, I shall take this opportunity to voice again my general concern about the way all this legislation is going. I have said many times that one of my greatest concerns with the Government's criminal justice policy is that it has never been costed. Nobody has worked out how much it costs in men, money and machines to carry out what the Government say that they intend to do. Only yesterday, there was a classic example of this when the custody plus programme was said to be the flagship of what was proposed. We all know that that is a classic example of something that was preached as being wonderful but has never come about because the resources to make it happen have never been available.
	Has the Minister done a sum and worked out whether the resources are available to deliver all the things that are required to be done—all these hours of work—with young offenders? Who is going to supervise that work? Are the resources of people, money and programmes there for them to do it? It is surely ridiculous to introduce legislation that cannot be implemented, because that must undermine trust in those who put it forward as a sensible proposal. I am sure that that is not what the Minister intends. I am absolutely with him: we want the best for our children. However, it is important not to introduce legislation that cannot be implemented, because that cannot make sense in the long term.

Lord Hunt of Kings Heath: I say to the noble Lord, Lord Ramsbotham, that it is always important that resources in people and money are available to make sure that we can implement legislation. That is often the reason why Governments reject sensible amendments in your Lordships' House. I do not disagree with the noble Lord about the general principle. Of course, circumstances can change between Bills being developed and their being implemented. It is our intention to make youth conditional cautions work as effectively as possible because we see them as a sensible approach to preventing young people coming into court. That is why we enjoy a great deal of support on the general principle of youth conditional cautions.
	The noble Lord, Lord Thomas, seemed to be trying to micromanage what would happen in court, because the provisions are in essence discretionary. I would have thought that we could rely on that good judgment to which he referred when speaking to earlier amendments and allow sentencers to exercise appropriate discretion. The noble Lord is right: there is no point in setting conditions that are set to be failed and which then lead to young people going to court and perhaps ending up in custody. Therefore, the conditions need to be appropriate and to have an element of seriousness; equally, they need to be conditions with which it is expected, after assessment, that the young person can comply. That is what we are seeking to do and we should give sufficient discretion in these matters.
	I have already indicated that we are sympathetic towards the amendment of the noble Baroness, Lady Falkner, which would extend the use of youth conditional cautions to people younger than 16 or 17. We will have to look at the impact on some of the other provisions, such as issues to do with financial penalties or the number of hours. However, the discretion in the Bill would probably be acceptable for other age groups as well.
	The financial punishment may be appropriate. The considerations and circumstances that will need to be taken into account will be specified in the code of practice, which will provide an excellent opportunity to reflect on some of the points made by the noble Lord, Lord Thomas, who said that we must not set conditions that are set to be failed.
	Not every young person will need a programme of interventions. I accept that we have to be careful not to draw all young people into extensive interventions, which may thoroughly disrupt their lives. We want to avoid creating the perverse outcomes that the noble Lord suggested. However, sometimes a fine is appropriate; it will allow a young person to put the matter behind them and might be effective in preventing reoffending.
	The noble Lord referred to the number of hours. The provision sets the maximum number of hours that a young person is required to attend a specified place at a specified time. While it is appropriate for there to be an absolute time limit, we should surely allow people at the local level, in considering the young person concerned, to have discretion up to those 20 hours. The noble Lord said that rehabilitation conditions would last much longer than any maximum hours set. Any condition in respect of rehabilitation has to be reasonable and proportionate. I am certainly happy to make sure that this point is dealt with in the code of practice. I hope that the noble Lord will think that that is a reasonable answer on this matter.

Lord Thomas of Gresford: Well, not really, because the noble Lord suggests that the provision equates a magistrates' court with the "authorised person". If one looks at the mechanisms behind it, one will see that it is not the magistrates who give the youth conditional caution but an "authorised person", who is a constable or an investigating officer—I am interested to see that they could be an officer of Revenue and Customs, though why an officer of Revenue and Customs would give a youth conditional caution to someone of 16 or 17 or under I cannot imagine. Alternatively, it is a person authorised by a "relevant prosecutor" for the purposes of the section, the relevant prosecutor being the Attorney-General, the director of the Serious Fraud Office, a Secretary of State and so on. Who decides what conditions are to be imposed? Is it the Attorney-General or Revenue and Customs, or is it just a constable on the beat? If it is a constable on the beat, will they have in front of them all the matters to which the Minister referred in his response? Will he be in the same position as a magistrates' court, which is filled with trained and experienced people who have real consideration for the problems that young offenders undergo?
	The authorised person is being asked to lay down conditions. If he goes to his bible, Schedule 18, what does he see? He can give a financial penalty. He might, as the Government have previously suggested, march the young person to the nearest cashpoint and say, "I want £50 from you; otherwise, you won't get a youth conditional caution". There all sorts of ways in which the power may not be employed in precisely the way that the Minister envisages. I do not accept that the discretion given to trained and experienced people in a magistrates' court is in any way similar to the powers given to a constable or an investigating officer of Revenue and Customs. This is another matter that the Government need to look at again and we shall refer to it on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 108 to 112 not moved.]
	Schedule 18 agreed to.
	Clause 99 agreed to.
	Schedule 19 [Protection for spent cautions under the Rehabilitation of Offenders Act 1974]:
	[Amendment No. 113 not moved.]

Baroness Falkner of Margravine: moved Amendment No. 114:
	Schedule 19, page 249, line 34, leave out from "(3))" to end of line 35 and insert—
	"(a) the period of three months from the date on which the conditional caution was given if the offender was aged 18 or over at the time the caution was delivered, or(b) six weeks from the date on which the caution was given if it was a youth conditional caution as defined in section 66A(2) of the Crime and Disorder Act 1998."

Baroness Falkner of Margravine: This amendment, too, was advocated by the Standing Committee for Youth Justice. It would introduce a distinction in rehabilitation periods associated with youth conditional cautions and conditional cautions for adults.
	The Bill proposes a specified rehabilitation period of three months for conditional cautions unless the person is subsequently prosecuted and convicted in respect of that offence. If the latter happens, the rehabilitation period will be that associated with the sentence imposed by the court. The proposal would entail conditional cautions becoming spent after the same period, irrespective of the age of the subject.
	The Rehabilitation of Offenders Act 1974 distinguishes between children and adults in the rehabilitation periods associated with many of the disposals that currently fall within its scope. Most custodial sentences are in effect halved in the case of a young person under 18 at the point of conviction. The differentiation is maintained for the youth rehabilitation order proposed in Part 1 of this Bill; in other words, the order would have a shorter rehabilitation period than the adult equivalent.
	There may be good grounds for distinguishing between children and adults. An unspent conviction on a young person's record has a disproportionate effect given that their employment history will be short by virtue of their youth. It has an effect when they enter the job market, for example. The Home Office review of the Rehabilitation of Offenders Act, Breaking the Cycle, said that many young people wanting to enter the job market may have had no other experience with which to demonstrate attributes, such as reliability, that are important to employers. An unspent record may have a particularly damaging effect on someone who has had no opportunity to build up a record in the community.
	We propose that youth conditional cautions should become spent more quickly than the equivalent pre-court disposals for adults. Such a distinction would reflect the belief that youth conditional caution conditions should be less onerous than those for adults and therefore completed more quickly. The thinking behind this is that, if you apply a formula to adults and change it disproportionately for younger people, it may not have the effect of making that shortened period feel significantly shorter, because naturally if you have lived less long the passing of time seems slower. So the amendment would provide for a rehabilitation period of six weeks in the case of a youth conditional caution, which would be half that which would apply to adults. I beg to move.

Lord Bach: I thank the noble Baroness for her amendment. Most of us in the Committee understand about the passing of time. On whether young people do to the same extent, I share the noble Baroness's doubts.
	More seriously, this is a serious amendment, which we want to debate seriously. We appreciate that quite a lot of sentences on young offenders are spent in half the time that they would be for an adult but, as the noble Baroness conceded, that is not the case for every sentence; absolute or conditional discharges, which may be relevant here, are such examples. However, we do not think that it should be the case for youth conditional cautions, as I shall try to explain.
	Schedule 19 sets the rehabilitation period for adult conditional cautions and youth conditional cautions at three months. We have chosen this rehabilitation period because it is the mid-point between, on the one hand, the period specified in this Bill for simple cautions—that is, those that are not conditional cautions—reprimands and warnings and, on the other, the existing period for the least serious court disposal, an absolute discharge. In other words, a simple caution, reprimand or warning has no rehabilitation period; for the absolute discharge—the lowest that you can get in court—a six-month period has to pass. On the basis that our proposals for simple cautions, reprimands and warnings enter into law, they will be spent immediately, whereas an absolute discharge is already spent after six months for all offenders of whatever age. In our view, the rehabilitation period for both adult and youth conditional cautions should therefore be three months.
	The rehabilitation period of three months reflects the fact that it is an out-of-court disposal—that is, a disposal that is less serious than the lowest court disposal, an absolute discharge. As a youth conditional caution is intended to be given in cases that are not serious enough for court but are more serious than a reprimand or warning, which according to the Bill will become spent immediately, it makes sense that the rehabilitation period is midway between the two.
	The amendment would reduce the period for the youth conditional caution to half that of the adult, to make it six weeks. However, we would draw an analogy with the rehabilitation period for a conditional discharge, which is a year. The rehabilitation period of that sentence would not be halved for a young offender. Therefore, this being analogous to a discharge, it is sensible to follow the same principle for a youth conditional caution when compared to an adult conditional caution. The rehabilitation period also reflects the fact that we consider that the majority of conditions to be attached to a youth conditional caution are likely to have been completed not necessarily in a six-month period but within the three-month period. That is why we do not think that six weeks is appropriate in this case.

Baroness Falkner of Margravine: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Schedule 19 agreed to.
	Clauses 100 and 101 agreed to.
	Schedule 20 agreed to.
	Clause 102 agreed to.

Baroness Linklater of Butterstone: moved Amendment No. 115:
	After Clause 102, insert the following new Clause—
	"Treatment of 17 year-olds as children for remand purposes
	(1) Section 23 of the Children and Young Persons Act 1969 (c. 54) (remands and committals to local authority accommodation) is amended as follows.
	(2) In subsection (12), in the definition of "young person", for "seventeen" substitute "eighteen"."

Baroness Linklater of Butterstone: In moving the amendment, I shall speak to Amendment No. 116 as well. Both are in my name and those of my noble friends. Amendment No. 115 concerns, once again, the treatment of 17 year-olds, in relation, in this case, to bail or remand. At present, there is an anomaly here, for while 17 year-olds are still technically children, they are in fact treated as adults when bail is denied, which means that they are automatically remanded in custody and not to local authority secure—or non-secure—accommodation.
	The Bail Act 1976 applies in its entirety to children and young people as well as adults, but it is only when the court refuses bail that the law relating to children is substantially different to that applying to an adult. As a result of the Criminal Justice Act 1991, young people under 17 are dealt with in the youth court system and benefit from the rules that ensure that, while bail may not be granted, other provisions are in place to make certain that a remand into custody is always an absolute last resort. This can mean a remand to local authority accommodation, which, if not secure, can include additional conditions to manage any risks and include a YOT pre-court programme or tagging, all of which is extremely constructive. Alternatively, it could mean a remand to local authority secure accommodation for all girls up to 16, and boys if they are considered to be vulnerable. Finally YOIs—youth offender institutions or secure training centres can be considered for non-vulnerable boys of 15 and 16, but that does not apply to 17 year-olds, who are still being dealt with as adults and do not have any of the other options available to 16 year-olds.
	Youth Justice Board figures show that 6,561 "episodes"—a curious name, in this case—of 17 year-olds remanded to custody occurred in 2005-6. The Government said that they intended to put this situation right when they responded to the consultation paper Youth Justice—the Next Steps in 2004, but these figures show that it is still merely an intention and nothing has actually happened. Hence the need for this amendment.
	Where the line is drawn to distinguish between children of different ages can always have an element of arbitrariness, but there are no obvious grounds for continuing to treat 17 year-olds as adults, particularly when they are still legally children and just as liable to be vulnerable as 16 year-olds. Indeed, the evidence shows that many 17 year-olds can indeed be very vulnerable and are part of figures showing that 60 per cent of boys have serious mental illness. There have been 1,324 self-harming incidents in 2004-5 and six suicides in the past five years. They all demonstrate my point.
	When secure accommodation is deemed necessary, which it very well may be, it is generally accepted that children should be kept out of the adult criminal justice system for as long as humanly possible to avoid the damaging effects that custody entails. I therefore urge the Government to consider the amendment very seriously.
	Amendment No. 116, to a certain extent, follows on from what I have just said. Children who are detained on sentence or remand should be detained only in secure children's homes and not in a secure training centre or a young offender institution. Once again, the argument is based on the premise that we are talking about children with needs and vulnerabilities, which are now clearly defined and acknowledged in the UN Convention on the Rights of the Child, the Joint Committee on Human Rights, the Centre for Crime and Justice Studies and the Local Government Association, not to mention all the professional bodies involved in the needs of and provision for children who come together under the umbrella of the Standing Committee for Youth Justice.
	YOIs are part of the Prison Service. The Prison Service is essentially an institution for adults where the emphasis is primarily on security, control and safety, as well as on making provision for the needs of prisoners. Here I declare an interest as vice-president of the Butler Trust, which I helped to found, and which for more than 20 years has been recognising excellence in prisons by giving awards to staff. So I know just what good work can be done and am always glad to pay tribute to the work it does, which we recognise annually. Indeed, we will be doing so on Monday in Buckingham Palace. I also therefore know that prisons are not places with a child-centred approach or where the welfare of children is the chief priority. Nor are they geared to meet their needs in terms of their staffing, training, management or regimes. And the current overcrowding crisis serves only to exacerbate these problems.
	Anne Owers, HM Chief Inspector of Prisons, has voiced real concerns. She has said that in many YOI establishments, a significant proportion of child protection referrals concern allegations of abuse or rough handling during the use of force and that some have resulted in injuries such as broken bones. She questions whether prison is the right or appropriate environment for many of the young people who end up there. We must take these comments very seriously.
	I have visited all but one of the secure training centres, and I recognise the hard work and commitment that many people who work in them bring to the task. But they too do not have the predominating welfare approach that children need; and the evidence of the Carlile report on restraint, strip-searching and "single separations"—or solitary confinement in plain English—is enough to demonstrate that they are not geared to do the job appropriately or to give the care needed.
	Once again I remind the Committee that one child has died while being restrained. While lessons have been learnt—and it was horrific for all involved—it reflects aspects of the management, culture, staff training and regime that are simply not appropriate.
	Before 1997 the Labour Party strongly criticised the plans for STCs, which were then still not built. In 10 years they have been embraced by this Government wholeheartedly and have apparently become a key part of youth custody. That has not been found necessary in Scotland and nor should it be necessary there. These children are often extraordinarily difficult to deal with. They are indeed the young thugs, feral youths and hooligans that we read about in the red tops—and they are familiar to many noble Lords in this place who sit in court as sentencers. They require extraordinary levels of skill, understanding and organisation and so on, to manage them adequately and constructively. They are more likely to be found in secure children's homes precisely because of their focus on welfare needs and their ethos. Not all such homes are as brilliant as they perhaps need to be, but I know some brilliant ones, and you can recognise them as soon as you go through the door. The restraints used elsewhere are not used to anything like the same extent in those homes and the chances of children coming out less damaged are greatly improved.
	For as long as they are children, we are duty bound to treat them with the same care as all our children. To do otherwise would be to betray them and to demean ourselves. I beg to move.

Lord Judd: It would be impossible to rise with more positive feelings towards an amendment than my feelings towards that which has just been moved by the noble Baroness, Lady Linklater of Butterstone. I always feel when I listen to her that she brings the moral authority of her Presbyterian background together with the authority of her engagement. In all my work over a lifetime in organisations involved in social engagement, I always think that those who speak with the authority of actually doing as distinct from just theorising are particularly powerful and should be listened to particularly carefully.
	Many of the arguments that the noble Baroness has put forward have been elaborated on in previous amendments. She knows, and she agrees with me, that we should be concerned with children up to the age of 21 for the reasons that she put forward in connection with her own amendment.
	We have been over this ground. I simply cannot understand our collective complacency about the issue. The noble Baroness referred to 1997. I worked with great enthusiasm—and I do not mind saying it—for the election of the Labour Government. Part of why I was working with enthusiasm was the Labour Party's enlightened attitude on issues of this kind. I am sad that we have somehow rationalised ourselves into accepting the unacceptable. I do not see how anyone with civilized values who looks at what is happening in Britain can be anything but alarmed.
	I look at the statistics again. Since 1990, 30 children have died in custody and care of the state; 28 of those deaths were self-inflicted; one was a homicide; and one was restraint-related. All of those, apart from the most recent which were in secure training centres, were in Prison Service accommodation in young offender institutions. How can we call ourselves civilized and live with that situation? Of course these are children and of course we must have special provision that is carefully designed and styled for the task in hand, which is to save them from a wasted life and enable them to be rehabilitated and to become full and positive citizens. Of course the aura surrounding a prison is all wrong from that standpoint, although I agree with the noble Baroness that excellent work is being done in some prisons.
	I crave the Committee's indulgence in drawing my next point to its attention because it relates to the noble Baroness's point about raising the age. In the same period to which I referred, 201 young people aged 18 to 21 have died in custody, including 178 self-inflicted deaths and five homicides. That is a nightmare and it is time we did something about it. The noble Baroness has put forward an amendment that helps us to move towards tackling this issue effectively.

Lord Ramsbotham: I support the noble Baroness's amendment and could not have agreed more with every word that she said. However, I do so with a certain sadness because what she said has been said over and again for the last 12 years—to my certain knowledge, because I have been involved in a certain amount of the saying of it. All I want is to add two words to Amendment No. 116, which states:
	"No person ... shall be detained in a young offender institution or a secure training centre".
	The relevant words are "prison or". When I inspected Holloway in December 1995 the governor told me that there were four 15 year-olds in the prison. I asked where they were and why. She did not know where they were and I said that we would look for them during the day I spent with her. We did not find any of them that day but the following morning I found two of them when I went down to the antenatal unit and noticed on the wall a list of names and ages, two of which were 15. I asked the midwife, "Are those two girls pregnant?". She said no. I asked, "Why are they here?". She said, "Because they don't know where else to put them". I asked, "Are all the women pregnant?". She said, "No, we've got psychiatrically disturbed and others". I wondered how on earth a prison service could put two 15 year-old children into such a place in 1995. Having made a fuss then and had promise after promise made to me over the next five and a half years for which I was responsible for inspecting prisons, what disturbs me is that there are still young female children in adult prison accommodation.
	Furthermore, during this time of overcrowding, about which we are all concerned, there are children who are being moved into adult prisons before they reach their 18th birthday as an administrative convenience. I personally think that it is utterly unacceptable that any child should go into an adult prison. It should not be necessary to include this in legislation because common sense should prevent it. But as we are spelling out precisely where they should not go, I do not think that it would be consistent with all that we have said about protecting the child if we did not add those two words to the otherwise excellent and complete summary of what is required that the noble Baroness has so ably put forward.

The Earl of Onslow: It is impossible to underestimate the support that I would like to give to the noble Baroness, Lady Linklater. Just before the 1997 election I remember a Division in this House in which I voted against what I thought was a piece of barbarism on the part of Mr Michael Howard. I think that I voted with the Liberals because Labour Members were voting with the Tories on that to get the Bill through quickly. I remember saying to the late and much respected and loved Gareth Williams, "After the election the Home Secretary will either be called Michael Straw or Jack Howard", and I have been proved absolutely right.
	There is nothing new in this panic about children being feral. In my dim and distant youth when the late Lord Whitelaw was Home Secretary he started something called the short, sharp shock and we had a little experiment with detention centres, but what happened was that in went flabby criminals and out came very fit criminals. I seem to remember that throughout my life people have complained about the disgustingness of the young. The Committee has heard my story about going to schools and declaring that the youth of today have no manners and show no respect. The children all look horrified but then I say, "Don't worry, that was written on clay tablets in Sumeria 2,500 years ago". We have always had problems in this regard. But I thought the really interesting comment made by the noble Baroness, Lady Linklater, was when she referred to the difference between good places and bad places. Surely the money and the effort should be directed at bringing the good schools up to scratch, because they will stop the young getting worse. We must do our level best to achieve that. That is our duty to society. It is our duty as legislators to frame the legislation in such a way that that can be done rather than just say, "Oh, lock the little brutes up and put them down a waste disposal unit", which can be a very easy reaction to have. Frankly, some of them are repellent beyond peradventure; they are not all Lord Goldsmiths. However, the noble Baroness, Lady Linklater, is taking a civilised and intelligent look at what is undoubtedly a serious, persistent and almost certainly impossible problem to cure.

Baroness Butler-Sloss: I did not intend to speak on this amendment but the powerful speech of the noble Baroness, Lady Linklater, impels me to comment. When I dealt with children in care and children with major problems as a family judge, I became very well aware that I needed to look also at their elder brothers and sisters, many of whom were 16, 17 or 18 and some of whom were also my charges in a sense when I was dealing with these cases. I needed to consider the extreme vulnerability of young people who have committed offences that are sufficiently serious for them to need to be incarcerated. It was very distressing to consider putting them in an adult prison such as Holloway or a young offender prison. My noble friend Lord Ramsbotham made a powerful speech about the conditions that he found in Holloway. It was distressing when a Tory Government did not do anything about it. As the noble Lord, Lord Judd, said, it is even more distressing when a Labour Government have not done it because one knows that in many ways the heart of a Labour Government is in the right place. But they do not actually deal with the vulnerability of children. A young person of 17 is not actually a child but he or she remains a very vulnerable youngster, however wicked the offence that he or she may have committed. I strongly support these two amendments.

Lord Mayhew of Twysden: The recollection of my noble friend Lord Onslow about the short, sharp shock detention centres is relevant because they seemed a good idea at the time. However, they were disappointing because they did not recognise the more sophisticated demands that were presented by the problems of the young people who were in them. I was trying to serve Lord Whitelaw at that time and I remember going to one of the four experimental detention centres at Send in Surrey. I was received there with great enthusiasm and listened to what was said by the very splendid chairman of what I think was called the local liaison committee. She said, "We are so proud of our young men here. You can tell the difference. When they next appear in court they stand to attention and call the magistrate 'sir'". I had to agree that that was a start. However, I am afraid that it did not get much beyond that.

Lord Bach: I pay tribute to the noble Baroness who has tabled these two amendments. Her record in this field is well known by all Members of the Committee, and on behalf of the Government I pay tribute to it. We agree with her that there is an anomaly that needs putting right about 17 year-olds who are treated as adults for remand placement purposes, but as children in every other respect of the youth justice system. We are committed to looking at the issue and we have stated that publicly, as the noble Baroness mentioned, in our response to the consultation, Youth Justice—The Next Steps. We also acknowledge that the United Nations Commission on the Rights of the Child has identified the issue as requiring resolution and we accept our obligation to consider how to reach an acceptable solution.
	I reassure the Committee that we have not forgotten about this issue. Indeed, following the publication of Youth Justice—The Next Steps, the issue was the subject of an exhaustive and wide-ranging review. The aim of the review, like the aim of the amendment tabled by the noble Baroness, was to replicate the remand placement structure for 12 to 16 year-olds for 17 year-olds. However, it has proved an extremely complex issue for which we have as yet been unable to devise a workable solution. I hope the noble Baroness accepts this in the spirit in which it is intended: we have looked carefully at her amendment, but there are parts of that complexity that are not solved by it. I shall come to that in due course.
	It would probably be helpful if I briefly set out the current remand position for young people. As Members will be aware, where a young person appears before a court on a serious charge and has been bailed to attend, the court itself will normally remand the young person, either on bail or in custody, until a fixed date. This test is essentially the same for all ages, although a young person may be refused bail if it is necessary for his or her own welfare. We should remember, though, that the criteria for bail are not the subject of the proposed new clause. The Bail Act applies to young and old alike.
	For those aged 17 or older, if the offender is remanded in custody, the remand for 17 year-olds will be in a youth offender institution. For those aged under 16, a young person will normally be remanded to the care of a local authority and two options for dealing with that remand are then considered—whether to detain the child or young person in secure or non-secure accommodation. The Committee will know that that power is contained in Section 23 of the Children and Young Persons Act 1969. A secure remand can include a placement in a youth offender institution, a secure training or a local authority secure children's home. A non-secure remand can include a children's home or foster care, or a local authority may choose to remand the young person back to the family home under the supervision of their parents.
	The amendment would effectively bring 17 year-olds in line with the provisions applying to young people aged 16 and under. That would mean that a 17 year-old would be remanded to the care of the local authority and, subject to either the secure or the non-secure criteria, could be placed in a secure training centre or a local authority secure children's home. Our position is that ideally we want courts to consider whether a secure or non-secure remand option is most appropriate for a 17 year-old. However, we do not believe that they should be remanded into the care of the local authority. Section 23 of the Children and Young Persons Act also provides for the placement of the very youngest and the most vulnerable young people into local authority accommodation. Are we wrong to think it inappropriate to introduce 17 year-olds to local authority care and allow them to mix with that vulnerable group of younger children, particularly those who are there for welfare reasons? That would be wrong in precisely the same way as it was absolutely wrong, in the days the noble Lord, Lord Ramsbotham, was talking about, to have 17 year-olds in Her Majesty's adult prisons.

The Earl of Onslow: Is not the logic of that that there should be special homes for 17 year-olds only? The Minister has agreed with the noble Lord, Lord Ramsbotham, that they should not be in adult prisons, and he has said they should not be remanded to local authority homes because it is unsuitable for them to be with younger children. The logic of that is that you have special homes for 17 year-olds; it follows as night follows day.

Lord Bach: That may be a solution for some, it is true. At the moment they go into youth offender institutions, which are not adult prisons. If we rule out remand into local authority care, what would non-secure remand look like? It needs to be more robust than a bail package because it is different from bail but less restrictive than a custodial sentence. In effect, are we looking at the creation of a whole remand placement structure exclusively for 17 year-olds, which is the point the noble Earl has made so well?
	A great deal of detailed work has been undertaken to find a solution to this issue. I hope, even if the noble Baroness is disappointed by the conclusion we have reached tonight about her amendment, that she and the Committee will accept that a lot of work is still going on to try to solve this issue. It is not straightforward. There is a whole catalogue of linking factors that, with great respect, her amendment does not cover; for example, the status of 17 year-olds under police bail, which is covered by the Police and Criminal Evidence Act. That would need to be examined to consider the impact on the police in terms of accommodation for 17 year-olds and issues such as the provision of appropriate adults.
	We also need to look at the care status of young people under such a provision. Frankly, we need to consider the Bail Act itself and whether it offers us the sort of powers we need to ensure that 17 year-olds are remanded where it is appropriate. For example, we have identified that 17 year-olds who are likely to interfere with witnesses and have been refused bail may end up with a non-secure remand. That cannot be right. The offence of interfering with witnesses is one of the most serious and goes against the principles of justice more than any other, and 17 year-olds can commit it just as much as adults can. Surely the Committee will agree that that cannot be right and that we are failing in our duty to protect victims and the public if we do not address that problem.
	The Government have not lost sight of this issue. We are aware of our obligations to 17 year-olds in particular, under the UN Convention on the Rights of the Child and following our response to Youth Justice—The Next Steps. I repeat: we regret that we have not found a solution.
	Before I finish with Amendment No. 115 and move on to Amendment No. 116, I should deal with the noble Baroness having mentioned 6,561 as being the 2005-06 statistic of 17 year-olds remanded. In fact, I am advised that that figure is the total number of young people under 18 who are remanded; the number of 17 year-olds was 3,194. That is still a high number. The Committee might be interested to know that the numbers of young people under 18 in custody now—that is, on 15 February, the last date for which figures are available—are 2,353 in youth offender institutions, 242 in secure training centres and 209 in secure children's homes, a total of 2,804.
	Not in reply, but adding, to what the noble Lord, Lord Ramsbotham, was telling us, the Government have created completely separate estates for boys and girls, separating over-18s from under-18s. Girls under 17 are in secure training centres or secure children's homes. Girls under 17 are in four new specific units built between 2004 and 2006. The advice that I have received, which was specifically asked for, is that there are no young people under the age of 18 in Her Majesty's adult prisons at the moment.
	A huge amount remains to be done, but I hope that the noble Lord, Lord Ramsbotham, will accept, as I hope will other Members of the Committee, that that is an improvement on the position that prevailed previously and during the time when he was doing his excellent job a few years ago. As to her amendment, the noble Baroness could not be more right than to bring this anomaly and possible solution to the Committee. Her amendment is defective because this is such a complex issue and has many more difficult problems attached to it; but we are working hard to find a solution and we would be grateful if noble Lords could help us with that.
	I turn briefly to Amendment No. 116. I shall try not to repeat myself, although I have to make some of the same points. In some cases when we need to safeguard young people—and in most cases regarding children under 15—the appropriate place will be a secure children's home. However, children's homes, as I have said, are for children. Most young people of 17 are not children in the same way that a 13 or 14 year-old is; and this is important for safeguarding them.
	Surveys indicate that most young people in custody are not worried about their safety, but those who feel unsafe believe that they are at risk from other trainees. Putting 17 year-olds, who may be large or aggressive or even both, together with children some years younger would not only make the younger children feel unsafe, but might put them at risk. We do not think that we should go down that path. However, we are committed to improving the safeguarding of young people in custody and we would argue that we have done a great deal to improve the conditions in which they are accommodated. Despite what another expert in this field, my noble friend Lord Judd, has argued, our record is not bad. To give the latest example, a new unit for more vulnerable 15 year-old and 16 year-old boys is being developed at Wetherby young offender institution.
	We believe that that is a practical response to a difficult issue. I hope the noble Baroness will agree that we are taking the matter seriously and that she will withdraw her amendment.

Lord Judd: I hope my noble friend will not mind me pointing out that while he has given us an impressive array of statistics, there has been a great deal of talk of late in this realm of policy about "fit for purpose". If our objective is the rehabilitation of the young, what is the reoffending rate among these young people and children, and what is the cost to society of that reoffending? He has not given us those statistics. If we are to measure how effective we are being, it is not just a numbers game about how many we have here or there, it is about whether these young people are really being won to positive citizenship or not.

Lord Bach: We all agree that if we possibly can we should keep young people out of custody. Where, alas, that is not possible—I think everyone agrees that sometimes it is not possible, whether it is before trial or as a result of sentence—it is vital that we differentiate between those who are over 18 and those who are under 18 as regards where they are placed. We would argue, too, that it is important that 17 year-olds are not placed with 14 year-olds. It is vital that all is done when they are in custody to try to rehabilitate them. We are all at one on that. The problem is that we do not solve this problem as quickly or as easily as we would like to and it remains a problem for one Government to another Government, and then maybe one day to a third Government. I hope the Committee will feel that this Government, as much as any previous or likely Government, are committed to trying to ensure that our young people, who have their particular problems and issues, are treated in a way that gives them the very best chance of being rehabilitated and leading ordinary, secure and lawful lives.

Baroness Linklater of Butterstone: First, I did not say and I have never said that there is not a need for secure provision for young people; it is the type of secure provision that we are talking about here. I thank everyone who has taken part in this important debate. I shall not forget the kind words that have been said around this Chamber. I thank noble Lords for that. I shall also not forget—I hope that the Minister hears this very clearly—the words from the lips of the noble and learned Baroness, Lady Butler-Sloss, who said just how very vulnerable these 17 year-olds are. The statistics I have used—on self harming, suicide and so on— prove that.
	I recognise that the Government's intentions are good, but I would like to remind the Minister that secure training centres—child prisons where the children are as young as 12—are a child of this Government. When he talks about, for example, how inappropriate it is to put 17 year-olds in secure children's homes, which are actually designed for them, he is perhaps forgetting not only the vulnerabilities but the implications of putting 17 year-olds with much older and, as it were, much more experienced prisoners in the prison estate. YOIs are very much a part of the prison estate.
	The noble Lord said that he could not see why 17 year-olds should not go to YOIs as they would present a risk to younger children in secure children's homes. Of course there are secure children's homes that cater for children with welfare issues. There are others which do not and there is endless scope, if we take up the challenge, of developing the work in secure children's homes. I would love to take the Minister to one or two that I know very well, particularly in Scotland. It is a different world there, where children do not need to have their bones broken when they are restrained. That simply does not happen.
	For the moment, I have said enough. I feel very strongly about this, as the Minister understands. I have listened hard to what he said and it is almost inevitable that we shall return to this matter on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 116 not moved.]
	Schedule 21 agreed to.
	Clause 103 agreed to.
	Schedule 22 agreed to.
	Clause 104 agreed to.

Baroness Royall of Blaisdon: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

Business

Baroness Royall of Blaisdon: My Lords, I beg to move that the House do now adjourn during pleasure until 7.59 pm, the reason being that many noble Lords who have been participating in our Committee debates are going to participate in the dinner hour business. I thought that it might be useful for them to have a short break.

Moved accordingly, and, on Question, Motion agreed to.
	[The Sitting was suspended from 7.49 to 7.59 pm.]

Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2008

Lord West of Spithead: rose to move, That the draft order laid before the House on 30 January be approved.

Lord West of Spithead: My Lords, the purpose of the order before the House is to renew the Prevention of Terrorism Act 2005. The Act automatically lapses after one year unless renewed by order subject to affirmative resolution in both Houses. The effect of this order will therefore be to maintain the powers set out under the Act until the end of 10 March 2009. This will allow us to continue to use control orders to tackle the threat posed to national security by suspected terrorists whom we can neither prosecute nor deport. The other place voted in favour of renewal on 21 February.
	Over the past few years, we have witnessed a number of appalling attacks on our country. Those attacks have sought to undermine our fundamental rights and values through the indiscriminate murder of innocent people. The director-general of the Security Service stated in November last year that,
	"the number of people ... involved in terrorist-related activity",
	in the United Kingdom,
	"has increased to at least 2,000. And we suspect that there are as many again that we don't yet know of."
	The threat is clearly real and it is serious. Faced with a threat of this scale, it would be naive to suggest that there is a simple solution. We need a range of responses to reduce the risk of further terrorist attacks. The balance between individual liberty and public security is key. We must ensure that we protect all our values and civil liberties while defending the most fundamental of these—the right to life.
	Let me make this clear. Prosecution is, and will continue to be, our preferred approach when dealing with suspected terrorists. In 2007 alone, 37 people were convicted of terrorism-related offences in 15 cases, and so far in 2008 16 people have been convicted of significant terrorist-related offences. However, we need to ensure that we maximise our ability to prosecute suspected terrorists, and we have sought to do this in a number of ways.
	First, we have introduced new offences in the Terrorism Act 2006, which have already been used successfully. We are also studying the recent Court of Appeal judgment overturning convictions under Section 57 of the Terrorism Act, including any implications that it may have for our wider counterterrorism legislation and strategy. However, the Director of Public Prosecutions has already stated that the judgment was,
	"specific to the facts of the case",
	and was therefore unlikely significantly to affect existing convictions or forthcoming prosecutions. Secondly, we have proposed measures in the Counter-Terrorism Bill to extend post-charge questioning of suspected terrorists. Thirdly, we have accepted the recommendations set out in the Chilcot recommendation for the introduction of intercept as evidence, provided that the conditions outlined can be met. However, as the Chilcot report states:
	"We have not seen any evidence that the introduction of intercept as evidence would enable prosecutions in cases currently dealt with through control orders".
	Finally, two other proposals made at the renewal debates last year—the threshold test and turning Queen's evidence—are already in place.
	If we cannot prosecute suspected terrorists and they are foreign nationals, we aim to deport them. The European Convention on Human Rights currently does not allow us to deport suspected terrorists back to their country of origin if there are grounds for believing that there is a real risk that they might be tortured or subjected to inhuman or degrading treatment on return. Therefore, to provide the necessary assurance as to treatment, we have agreed, and are continuing to negotiate, appropriate arrangements with other countries to protect deported individuals' human rights.
	Separately, we are also working to persuade the European Court of Human Rights to reconsider current jurisprudence on the deportation of terrorist suspects in order to ensure that the rights of the individual are appropriately balanced by the interests of national security.
	Despite these advances, there remain a very small number of suspected terrorists whom we can neither prosecute nor deport. Control orders remain the best available means of dealing with these individuals. Since their introduction in 2005, control orders have been an important part of our fight against terrorism. A tailored set of obligations, such as restrictions on their finances or communications equipment, can be applied which help to prevent, restrict and disrupt individuals engaging in terrorism-related activity.
	Control orders are not imposed arbitrarily. A judge must agree that they are necessary and proportionate, and they are subject to regular and rigorous review. As of today, only 11 control orders are in force and only 31 individuals have ever been subject to a control order. They are an important tool in protecting the public from the very real threat from terrorism.
	Over the past year, there has been continued support for control orders from outside government. First, there was the landmark judgment by the Law Lords in October last year. Crucially, they upheld the control order system, although we were disappointed that they did not agree with the Government on every issue.
	On Article 5 of the European Convention on Human Rights, the Law Lords judged that no control order then in effect needed to be weakened. Indeed, the judgment puts the Government in a stronger position than before, as the Law Lords effectively indicated that a 16-hour curfew does not breach Article 5.
	On Article 6, the judgment was more complex and has been widely misreported. The Law Lords did not say that any case before them had breached the right to a fair trial. They said that in some, possibly exceptional, cases, the current provisions in the Act might breach Article 6. The Act was therefore "read down" to ensure that the procedure adopted under it would be compatible with Article 6 in every case. They concluded that the High Court should consider the point on a case-by-case basis. This forms part of the mandatory review of each individual control order by the High Court—one of the many safeguards in place to secure the rights of the individual. We therefore remain firmly of the view that the legislation, and the order before us today, are fully compliant with the ECHR.
	Secondly, the independent reviewer of the operation of the Prevention of Terrorism Act, the noble Lord, Lord Carlile of Berriew, continues to view control orders as necessary. He states that,
	"as a last resort (only), the control order system as operated currently in its non-derogating form is a justifiable and proportional safety valve for the proper protection of civil society".
	Both the other statutory consultees—the Intelligence Services Commissioner and the director-general of the Security Service—share this view. I place on record my, and the Government's, thanks to the noble Lord, Lord Carlile, for another thorough report, which I am sure will add a great deal to today's debate. A formal reply will of course be produced in due course.
	Let me be clear that control orders are not ideal. They are a last resort for those involved in facilitating or executing acts of terrorism who cannot be prosecuted or deported. However, over the past year, much hard work has gone into improving them. For example, exit strategies continue to be sought for those currently on control orders. Although I am not convinced by the suggestion of the noble Lord, Lord Carlile, that there should be an arbitrary end date for individual control orders—in part because each order addresses individual risk—I am firmly of the view that control orders should be imposed for as short a time as possible, in line with the risk posed. Exit strategies are considered as an integral part of the formal quarterly review for every control order, and an order can be renewed only if it is necessary to do so. Indeed, over the past year, we have seen two control orders revoked and another two orders not renewed. Deportation is another exit strategy. Previously, nine individuals who were at one time subject to control orders have been served with notices of intention to deport, and six of them have been deported.
	To clarify a matter raised by honourable Members during the debate in the other place, there are currently five individuals who have been subject to control orders for longer than two years. Two further cases would have reached the two-year point on Saturday. However, those control orders have now lapsed, as the orders were those imposed on two of the individuals who absconded in May 2007.

The Earl of Onslow: My Lords, can the noble Lord comment on that? Has anything been heard of those who absconded? Have they done any harm? Have they done anything wrong or caused any havoc and hassle?

Lord West of Spithead: My Lords, so far as I am aware, we have no information whatever about them.
	As was made clear last year, the Government continue to consider the prospects of prosecuting individuals subject to control orders for terrorism-related offences on an ongoing basis and review it formally each quarter. Over the past year, we have put new procedures in place and the police provide more detail to the Home Secretary on the prospects of prosecution.
	As well as greater use of exit strategies, the noble Lord, Lord Carlile, also notes the difficulties of enforcing so-called light-touch control orders. We agree that these can be problematic. Since the renewal debates last year, all current control orders and the monitoring procedures that they are subject to have been reviewed to ensure that they are as effective as possible. In a number of cases, where it was necessary and proportionate to do so, the control orders were strengthened. However, we are not convinced by the use of ASBOs or civil proceedings for an injunction against specified activities—alternatives that the noble Lord, Lord Carlile, suggested.
	Legislative improvements to control orders have also been worked on over the past year. The Counter-Terrorism Bill was introduced on 24 January and includes measures to improve the policing of control orders. I note the amendment to the Motion tabled by the noble Baroness, Lady Miller. I should emphasis that the Bill will also, of course, give noble Lords further opportunity to debate and to consider amendments to the control order system more generally, including the many detailed points raised in the JCHR report published last week.
	In conclusion, we face a threat from terrorism which is determined, indiscriminate and brutal. We must protect the public, while ensuring that our fundamental rights and values are protected. Control orders are an important part of this delicate balancing act. They are one of a significant number of measures that can be deployed to protect the public from terrorism. The risk to the public would surely increase if we did not renew the Act. This is a prospect we cannot allow. I commend the order to the House.

Moved, That the draft order laid before the House on 30 January be approved. 9th Report from the Joint Committee on Statutory Instruments, 9th Report from the Merits Committee, 10th Report from the Joint Committee on Human Rights.—(Lord West of Spithead.)

Baroness Miller of Chilthorne Domer: rose to move, as an amendment to the above Motion, at end to insert "but this House regrets that Her Majesty's Government propose to renew the provisions on control orders without offering the opportunity to amend the whole of the Prevention of Terrorism Act 2005".

Baroness Miller of Chilthorne Domer: My Lords, annually the Government are required to come before Parliament to ask that Sections 1 to 9 of the Prevention of Terrorism Act 2005 remain on the statute book. This should be far more than a rubber-stamping exercise. This debate should be undertaken to ensure that the exceptional measures, taken to deal with an exceptional threat, are continued only if necessary. The parliamentary debate should prevent a drift into acceptance of these exceptional measures because the danger is that they will become the normal default position. Sadly, the downgrading of the order in this year's business to a one-hour debate in the dinner break from last year's two-hour afternoon debate shows that the Government already regard this as a rubber-stamping exercise. On these Benches we regard this as a very regrettable move; we are concerned to keep the necessity for these orders in proper review and to ensure that Parliament is given due opportunity to do so.
	The Prevention of Terrorism Act should be reviewed to see which provisions should be retained, which updated in the light of experience and which dispensed with. I shall explain briefly why we on the Liberal Democrat Benches feel that we should review and substantially amend rather than simply rubber-stamp, which is really all that the Government are offering Parliament by this order. Liberal Democrats have consistently had deep concerns about two issues on these orders: first, that the standard of proof required for the imposition of an order should be raised from the Home Secretary's reasonable suspicions to a balance of probabilities; and, secondly, that non-derogating control orders should be granted through the judicial system by a judge and not through the political system by a politician. Neither of those points are mere niceties.
	I believe that on all sides of the House we agree that we must take measures to minimise the threat of terrorism. However, we on these Benches, believe that the Government are making some bad mistakes in those efforts. In its 10threport, the Joint Committee on Human Rights makes the point powerfully when it says,
	"Counter-terrorism measures which breach human rights are ultimately counter-productive and therefore worse than ineffective in countering terrorism".
	The same point was made very eloquently last year by the noble Lord, Lord Judd, when he said:
	"Protecting the public involves protecting liberty and those principles which, by being essential to the rule of law—habeas corpus, due process, the presumption of innocence and standards of proof—are the cornerstones of liberty. To erode them ourselves is to score a goal for the extremists, who seek their destruction".—[Official Report, 5/5/07; col. 18.]
	How right he was.
	As regards prosecution, the figures in front of me vary slightly from those of the Minister. I put it to the Minister that, although the points he makes are valid, the Government are still not pursuing prosecution as strongly as they might. But I would concede that, after considerable pressure, including from these Benches, we are pleased that the Government are to include provisions for post-charge questioning in the Counter-Terrorism Bill and that they are finally accepting that there is merit in using intercept evidence, given the necessary safeguards for national security.
	There are three substantial reasons that have occurred in the past year, since this House last debated this order, for the Government to amend this legislation substantially. Those reasons are: the experience of another year in how the regime works; the Law Lords' judgments; and the fact that there is now the opportunity in the forthcoming Counter-Terrorism Bill to look at amendments.
	The opportunity presented in the Counter-Terrorism Bill has been taken by the Government in some small degree. They propose to narrow the definition of involvement in terrorist-related activity; they propose to define the seven days allowed for representations in favour of the controlled person; and they propose to enable the anonymity of controlees to be protected from the start. However, I agree with the Joint Committee on Human Rights, which calls these minor, tidying up amendments. In fact, the Counter-Terrorism Bill as it stands fails to address the most significant defects of the control orders regime. These are brought to light by the recent House of Lords' judgments. I hear what the Minister says about these being widely misreported, but I turn his attention to paragraphs 43 to 47 of the report of the Joint Committee on Human Rights, where it details the concerns. In light of the time available tonight I shall not list them, but I urge the Minister to look at them. Although I am no lawyer, even I can see that it cannot be right that what constitutes a fair hearing should be decided on a case-by-case basis. Surely this must be laid down in statute, together with some reference to proof and the ability to rebut such evidence.
	The Law Lords' judgment should have been sufficient to persuade the Government that the statutory framework needs amending. They have the opportunity to do so with their forthcoming Bill and I urge the Minister to look at those issues again. Furthermore, the Joint Committee on Human Rights points to a measure of disagreement with how well the special advocate scheme is working. It also recommends that the Secretary of State should be required by statutory obligation to give reasons for making a control order.
	I turn briefly to the practical experience of what has been learnt over the past year. I would be grateful if the Minister could comment a little further on the efficacy of the orders. The point behind the orders, of course, is to prevent acts of terrorism and to prevent individuals likely to plan or incite such acts from progressing their plans. As opposition Members not privy to intelligence, it is impossible to know how successful any of the orders have been in that regard. The fact that two individuals have absconded while subject to two orders—the Minister has said tonight that he has no idea where they are or what they are doing—means that the orders are by no means completely reliable. Two out of a fairly small number is a pretty high failure rate.
	Will the Minister also comment on the fact that although the Government stated in their response to my noble friend Lord Carlile's 2007 recommendation that orders should not continue indefinitely, there is not so much evidence before us that the Government have been implementing exit strategies? The Minister gave us further figures but that criticism still stands. I would be interested to know the cost of control orders versus the cost of covert surveillance. Similarly, can the Minister comment on the efficacy of control orders versus covert surveillance, on the assumption that they are not mutually exclusive?
	There is no evidence that the Government intend to further use the Counter-Terrorism Bill to amend this legislation. It is quite likely that this time next year we will be faced with rubber-stamping these orders yet again. I warn the Minister that if this is the case—we shall certainly seek strenuously to amend the forthcoming Bill if the Government do not bring forward their own amendments—it will be a missed opportunity and make us more vulnerable in several ways. I encourage the Minister to rethink in the mean time because we have the benefit of a couple of months before the Bill comes to the House. I beg to move.
	Moved, as an amendment to the Motion, at end to insert "but this House regrets that Her Majesty's Government propose to renew the provisions on control orders without offering the opportunity to amend the whole of the Prevention of Terrorism Act 2005".—(Baroness Miller of Chilthorne Domer.)

The Earl of Onslow: My Lords, I rise to speak because I am on the Joint Committee on Human Rights, which produced this report. The noble Baroness, Lady Stern, and I have been hunting as a couple—if that is the right word—on this. I shall be interested to hear from the Minister, because after his comments on 42 days, it crossed my mind that had he been in command at Trafalgar, he would have said, "England expects—oh I don't mean that—England does not expect that every man shall do his duty". Perhaps that is a little unkind. He has given us an enormous amount of amusement—to put it mildly—over that volte-face; or as the taxi driver said, "We must now do an Admiral West", as he did a U-turn in the road.
	We on the JCHR have had several uncomfortable thoughts about this process. Our 10th report has major concerns over the parliamentary—or rather lack of parliamentary—oversight of the control order regime. The present system is not human rights-compatible and we have identified amendments that must be made to the Counter-Terrorism Bill. If the House of Commons goes through the Bill, as it has been doing, missing out great chunks and producing ill-thought-out legislation, the duty will fall on your Lordships. I hope that noble Lords will stand as firm as possible on individual liberty and the human rights of the subject, which is one of the most important things that we can do.
	As we are debating an order we cannot amend it, so all I can do is gloss over some of the main amendments, which I hope will be made in the new Bill. We were also disappointed that the report of the noble Lord, Lord Carlile, was not ready until extremely shortly before the Bill was published and the renewal orders came out. That was despite promises. Please can we have reports in time for people properly to take notice of them before more discussion on recommendations takes place?
	We make several recommendations in the report, which are for discussion on another occasion. In light of Guzzardi v Italy and the judgment of the noble and learned Lord, Lord Brown of Eaton-under-Heywood in the JJ case, we recommend that the PTA be amended to make a maximum curfew time of 12 hours. I did not quite agree with what the Minister said on this subject. It must be possible to have a curfew time that is no longer than 12 hours. In our previous report, we made six recommendations for amendments to the control order framework. These are,
	"the insertion of an express reference to the right to a fair hearing, making clear that nothing in the PTA requires a court to act incompatibly with the right of a controlled person to a fair hearing ... the addition of an obligation on the Secretary of State to give reasons for the making of a control order ... the imposition of an obligation on the Secretary of State to provide a statement of the gist of any closed material on which fairness requires the controlled person have an opportunity to comment ... provision for judicially authorised communication between the special advocate and the controlled person without having to disclose the questions to the Secretary of State ... the insertion of an entitlement of the controlled person to such measure of procedural protection (including the standard of proof) as is commensurate with the gravity of the potential consequences for the controlled person ... and the provision of a power for special advocates to call witnesses to rebut closed material".
	It is true that we were made very unhappy by the evidence we heard from the special advocates. It seemed almost impossible for them to do their job. It was incredibly difficult for them to discuss what they were supposed to be doing with their clients. After some stage they were not allowed to discuss the case with their client and had to represent them without talking to them. That cannot be satisfactory, especially if it is eventually found that they can be prosecuted and evidence will have to come out in court anyway. It is a most unsatisfactory arrangement.
	We think that the legislation may not clearly allow the High Court to set aside a control order based on factual error or new evidence showing a substantial change in the situation since the order has been made. That must again be wrong. If there is a factual error and the chap has been made to live in his villa in Ealing and is not allowed to go out surely he should have the right to appeal if the error is found out.
	To ensure priority of prosecution, control orders should be imposed only when the Secretary of State,
	"is satisfied that there is no reasonable prospect of successfully prosecuting",
	as it says in paragraph 67 of our report. There should be a statutory limit on how long a control order should last.
	I am sure that after a bit a potential terrorist becomes spent, stale and of no use, so there is a very strong case for not allowing a controlee to be controlled for longer than two years. A very exceptional case has to be made for that.
	As I said, we disagree with the noble Lord, Lord Carlile, on the fairness of the special advocate procedure, and I have given some reasons for that. The Government's failure to improve parliamentary review is disappointing. The lack of ability for real communication between special advocates and their clients I have already mentioned. The inability of the accused to hear evidence against them I have also already mentioned, which of course would be proper if brought to trial. No controlee has ever been prosecuted. I believe that two people have gone AWOL and just vanished into thin air with no apparent damage to society, and there have only been 34 in total. The Minister said that there are 2,000 known potential terrorists out there and up to twice that figure who are unknown. Somehow, those figures do not quite add up. If there are 2,000 potential terrorists out there and 34 people who, thank goodness, have been charged and prosecuted—34 people are under control orders—I hope that we are not exaggerating the terrorist effort.
	We say that there has been this great increase in terrorism. Northern Ireland was much nastier. I quite concede that the new factor is suicide bombing, which makes a great difference. Of course we must take that very seriously, but we must look at it in proportion, given the horrors that go on around us in other societies. It is nasty, but we could be in danger of exaggerating it.
	I have tried to be quite quick over this, and I have rather skimped in my précis of what we have said. The report is available and I urge people to read it, but I thought that it was important to bring the salient points to the notice of your Lordships, and I hope that I have done my duty as best I can.

Baroness Stern: My Lords, I am very glad to have the opportunity to speak at this annual event. I agree very much with the noble Baroness, Lady Miller, that the time available has been cut in half, which is highly undesirable. I, too, am a member of the Joint Committee on Human Rights, and I thank our staff for their tremendous working in getting our report into the public domain for debates in the other place and here this evening. I am very grateful to the noble Earl, Lord Onslow, for introducing the report, and I was very glad to hear the Minister say that the preferred option is prosecution.
	My particular concern in this matter has always been to ensure that we do not at any time forget the severity of this measure and the effect that it has on those subject to it. Those subject to it include the families and friends of those under control orders. I am very glad that that is referred to in the report of the noble Lord, Lord Carlile, where he states:
	"In the past year I have again been aware of the potential psychological effects of control orders".
	He goes on to say,
	"where the State takes coercive measures that could affect the physical or mental well-being of the individual, it is under a duty to monitor effectively the impact of those measures".
	Since our first debate on renewing the order on 15 February 2006, there have been some very welcome changes and more recognition of the impact that the measure can have on the mental health of an individual and his or her family. I note that the terms of reference of the Control Order Review Group, which reviews each control order on a quarterly basis, include,
	"monitoring the impact of the control order on the individual, including on their mental health and physical well-being, as well as the impact on the individual's family",
	and to,
	"consider whether the obligations as a whole and/or individually require modification as a result".
	Can the Minister tell us how that is done? Presumably, someone makes a report on the individual and on the family. Who makes the report and what are that person's qualifications? As it is a report on physical and mental health, presumably it is done by a doctor; is it an independent doctor? I should be grateful if the Minister could answer that question. I also suggest that the Control Order Review Group might be assisted in its work if there were an express duty in statute on the Home Secretary to monitor that closely and to seek independent expert evidence about the impact on the individual and his or her family.
	Clearly, this is a complicated matter and it is hard to find information on the effects of the control order regime, but I learnt from an ITN news report that Mr Bullivant, whose control order was quashed, told ITN:
	"Since the imposition of the ... control order ... I have been subjected to the most extreme pressures which have thrown my life into turmoil ... my wife has left me and my family and friends have become deeply distressed. The Home Office's own psychiatrist has confirmed that I am now suffering from severe depressive illness which was caused by the imposition of the control order".
	Have the Government learnt anything from this case, and has it affected how they make their assessments of physical and mental health?
	Also relevant to the point about the effect on the individual is the length of time of the curfew each day. The view of the Joint Committee on Human Rights is that 16 hours a day is too long. Our view is that 12 hours would be a more appropriate maximum. It is worth noting that the European Court of Human Rights in a case involving Italy has found that nine hours, when considered together with other severe restrictions, amounted to deprivation of liberty.
	The Kafkaesque nature of the process may also have an effect on the mental health of the person being controlled. That person gets no reasons from the Secretary of State. If the material is closed, the controlled person may not know even the outline of the case against him or her. The special advocate cannot discuss the case with the controlled person. The JCHR believes that the Secretary of State should give reasons for the making of the control order.
	We have discussed the length of the order. As I understand it, seven of the controlled people have been living like this now for two years; two of them have been under a control order for almost three years; and for the three years before that, those two were being held in Belmarsh prison. As the chairman of the Joint Committee, Andrew Dismore, pointed out:
	"That makes six years, all together, in detention or under control for people who have not been convicted of any offence at all. We run the risk of creating Guantanamo-style martyrs".
	I note that the noble Lord, Lord Carlile, recommended a maximum of two years, other than in genuinely exceptional cases. I heard the Minister say that he does not agree with the noble Lord's proposals, but I think the Government take the view that control orders should not be indefinite. The law as it stands allows them to be indefinite, so I would be grateful if the Minister could tell the House what amendment the Government are considering to ensure that control orders cannot be indefinite.

Lord Judd: My Lords, no one anywhere should underestimate the responsibility that falls on government in this exacting area. I for one do not underestimate the very direct and heavy responsibilities that fall on my noble friend who has spoken to the order this evening. It is essential that we emphasise that point in everything that we say.
	Two things trouble me in our approach to policy in response to terrorism. The noble Baroness, Lady Miller of Chilthorne Domer, has referred to something that I said in the debate last year. I assure her and other noble Lords that I stand by every word that I said last year; I feel at least as strongly now as I did then. We must remember that those cornerstones of British justice which have been so admired throughout the world did not come lightly; they came from decades and centuries of struggle and rugged determination to make the law a civilised example.
	Part of me recoils at the concept that, however frightening the terrorism with which we are confronted, we should by the presence of that danger begin to dismantle or erode what we have seen as fundamental to our system of justice. I feel that, and I am not afraid to say it. Some might accuse me of being a bit chauvinistic about it, but I feel, as a Briton who is proud to be a Briton, that we are giving the extremists a victory when we do that. I was a youngster in the Second World War, and I remember how, even as a very young boy, I was struck by how determined we were to try against all that adversity to stand by the principles of law as we then saw them. That part of me is real. The other part of my concern is that we do not inadvertently begin to act out the script that might have been written for us by bin Laden or other cold, calculating and manipulative extremists—doing the very things that they want us to do to discredit our declared commitment to justice and the principles on which our legal system works.
	I miss being on the Joint Committee on Human Rights. I very much enjoyed my time on it, and I have been very impressed by the report that it has brought out again this time. The noble Earl, Lord Onslow, is absolutely right that we should all read it. If I might say so with great deference to my noble friend, it is incumbent on him and the Government to give a considered response to your Lordships to the points made in the report by the Joint Committee, which does such sterling work on our behalf.
	In our approach to the response to terrorism, we must beware of counterproductivity. The Joint Committee makes that point. The Government have a human rights responsibility, as well as a political responsibility, to protect from terrorism the people within their jurisdiction. However, if by the things that they are doing they cross a line which means that they begin to provoke terrorism or drive impressionable people into the arms of extremists, they are not doing the job of protecting the British people. I have always felt that that argument is incredibly important. We must not play into the hands of the extremists.
	Sometimes I catch myself saying in the evening, "But do I still believe in human rights? I am making all these points on the basis of a rather political analysis". I passionately believe in human rights; I just happen to believe that there is a correlation between what makes hard, tough political sense and the cause of human rights. In fact, I am prepared to put forward the thesis that if you do not have a human rights problem, you will minimise the chances of extremism: if you have human rights problems, you will always increase the chances of extremism.
	The noble Baroness, Lady Miller, might have gone on to refer to some other things that I said last year, and I shall. I refer to that very important speech to the Criminal Bar Association made by the Director of Public Prosecutions in which he argued that we should hold it as an article of faith that crimes of terrorism are dealt with by criminal justice, and that in the wake of 9/11 some of the values enshrined in the European convention and in common law appear to be losing their status. Some people now seem to think that such fundamental rights as the right to a fair trial and the right to liberty can be compromised even when the life of a nation may not be entirely at stake. He argued that one of the worst manifestations of this approach has been the resort to parallel jurisdictions where standard protections, quite deliberately, are no longer available, and suspects are removed from the protections of criminal justice and are placed instead in quasi-judicial or even non-judicial fora deliberately hostile to due process.
	I was a member of the Joint Committee on Human Rights when the special advocates gave evidence. I shared the anxiety which has been expressed today. They were explicit. When asked, they said that they could see very little in common between what they were expected to do and all that they had previously understood to be the British system of justice. It was a simply impossible job to be expected to defend someone without being able to discuss the case in any meaningful way with their client.
	My noble friend has said tonight again that the Government's professed policy is the priority of prosecution. But the Joint Committee on Human Rights, in its report, has again underlined—to sum up its argument—that,
	"the fact that no individual who has been made the subject of a control order has subsequently been prosecuted for a terrorism offence, other than for breach of a control order, seems to us to be significant. We therefore continue to question the extent to which in relation to certain individuals priority is really given to criminal prosecution rather than the indefinite and extensive control which is currently available through the use of control orders".
	I believe that there are some very serious issues here.
	It also seems that the noble Baroness was right to say that we must not allow ourselves to drift into a rubber-stamping process. This is a very significant evening in the life of Parliament. We are re-enacting measures which cannot be held to be consistent with the traditions of British justice, and we are doing it in a dinner break with an hour at our disposal. How can that be right? We are in a very serious predicament. I hope that my noble friend, whose responsibilities are immense and whom I greatly admire in the way in which he tackles them in so many respects—including his first, instinctive response rather than his tailored response, which may come subsequently—will deal with the gravity of the situation when he comes to reply, not in terms of the terrorist threat about which we all agree, but in terms of the gravity of the situation for the quality of British justice.

Lord Teverson: My Lords, when the Minister talked about deportation, he used the word "currently" when saying that under European human rights legislation we are not able to deport people to countries where they are likely to suffer pain or torture. Does he feel that that will change in some way? I cannot see how, but I was very interested that he used the word "currently". Like other noble Lords, the key issue for me is around prosecutions. We want to see, not people under control orders, but those who are guilty of terrorist offences put away from society for a considerable period of time in prison under due process of law.
	Where are the Government in terms of their decisions on intercept evidence? Perhaps I may tempt the noble Lord into giving some opinion on how necessary control orders will be if, when and, I hope, as intercept evidence is allowed. Will this current type of legislation in terms of this order become redundant?

Lord Kingsland: My Lords, we last debated this matter at considerably greater length on 5 March 2007. We acknowledge of course the gravity of the terrorist threat and share the Government's concerns about it. We also take the view that, in circumstances in which it is impossible to prosecute or deport someone, some form of control order system will be necessary. However, control orders are instruments of Executive power and consequently pose dangers to a society based on the principles of democracy and the rule of law. Terrorism menaces those values as well; but responding to terrorism with legislation that is itself capable of undermining those values can, if it is not limited to what is absolutely essential and subject to regular review, achieve precisely the objects that the terrorists seek.
	It is worth reminding ourselves of the history of these orders. In early March 2005, when the Prevention of Terrorism Bill was being considered, those noble Lords who were involved will recall that this House was at loggerheads with another place on four or five issues, the most important of which was a sunset clause. In the end the deadlock was broken by the Home Secretary, who undertook to introduce legislation the following year which would give us ample opportunity to amend Sections 1 to 9 of the Prevention of Terrorism Act.
	Not long after that debate, in July 2005, we had the awful tragedy of London Underground suicide bombings. The Government speedily drafted and introduced a new terrorism Bill, and all noble Lords around the House acknowledged that because of the importance of swiftly getting that Bill on the statute book, it was not the appropriate context in which to reconsider Sections 1 to 9 of the 2005 Act.
	However, the Home Secretary gave additional reasons for not making the new Bill a vehicle for reconsideration of control orders. The first of these was the absence of the report of the noble Lord, Lord Carlile. The second was the consideration at the time by the noble Lord, Lord Carlile, of a separate issue, which was the legislative definition of terrorism and whether it should be amended. The third reason was that it was the beginning of the Government's own departmental work on intercept evidence, seeking a way to allow such evidence to be part of the prosecution's armoury. So the Home Secretary was moving away from the absolute commitment he had given the House in March 2005.
	The following year, when the noble and learned Baroness, Lady Scotland of Asthal, was in charge of Home Office matters in your Lordships' House, a further reason was given for not offering the House an early opportunity to reconsider Clauses 1 to 9, and that was a series of cases that had reached the Court of Appeal but not yet the House of Lords. I refer here to what I can encapsulate as the JJ case, the E case and the MB case.
	We now have the report of the noble Lord, Lord Carlile, and he has given his view on the new legislative definition of terrorism; a committee of Privy Counsellors has been set up and is guardedly optimistic about the possibilities of using intercept evidence in future prosecutions; and the House of Lords has taken a view on these three cases. In those circumstances, there is absolutely no reason whatever why when the Counter-Terrorism Bill reaches your Lordships' House we should not have a full opportunity to consider in detail and in depth Clauses 1 to 9 of the Prevention of Terrorism Act. Indeed, I believe the Government are taking their opportunities in another place to introduce certain amendments, albeit limited, as the noble Baroness said, to make some changes.
	I have been given private undertakings by the Leader of the House that we will have a full opportunity to consider all those clauses in the forthcoming Counter-Terrorism Bill, but I would be greatly indebted to the noble Lord, Lord West, if he will confirm that to your Lordships' House when he responds to the debate.
	I thought the noble Lord's conclusions about their Lordships' Appellate Committee's judgments were somewhat sanguine. As far as JJ is concerned, he fastened on to the speech of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, when he hazarded that, perhaps in certain circumstances, 16 hours would not fall foul of Article 5 of the convention. That remark has to be seen, as I am sure the noble and learned Lord, Lord Brown of Eaton-under-Heywood, would wish, in context. The noble and learned Lord, Lord Bingham, said in that case that one cannot simply look at the absolute number of hours and reach a conclusion as to whether or not it breached Article 5; one had to look at all the components of the control order. So it is quite possible that 16 hours with some particularly onerous other ingredients could push the 16 hours over into a breach of Article 5. The Home Office is being extremely optimistic if it simply thinks it can put 16 hours into every single control order from now on. In any case, the noble and learned Lord, Lord Brown of Eaton-under-Heywood may not be sitting on the next House of Lords Appellate Committee case on this, so I urge caution on the noble Lord.
	As far as MB is concerned, it is true that the House of Lords was not tempted by the suggestion that there should be a declaration of incompatibility with respect to Article 6; but it did say that Section 3(10) of the Prevention of Terrorism Act 2005 would be compatible with the convention only if you read into it Article 6 of the convention. That is a very substantial alteration of the position the Government asserted during the debates in your Lordships' House. It is quite clear that the court will now ascribe to itself two very important powers which the Government sought energetically to deprive it of when the legislation was initially introduced.
	The House of Lords says that the court, when considering whether there are grounds for a reasonable suspicion, was entitled to consider that as a matter of objective fact and that the courts should therefore look closely at the considerations that the Home Office took into account to decide whether they were reasonable. Secondly, the component parts of the control order and the extent to which they were excessively onerous was also a matter that the courts should take into account, although there they would give the Home Office a considerable margin of appreciation because the Home Office has at its disposal a great deal of intelligence information that is, for obvious reasons, not available to the court.
	I come now to the final judgment in E. I agree with a number of noble Lords who said that the most important thing is to prosecute these cases rather than to subject individuals to control orders. Here, the Joint Committee on Human Rights report is particularly powerful and convincing. This was again a matter of serious dispute in March 2007. The conclusion of the House of Lords judgment in E is that it is implicit in the scheme of the 2005 Act that it is the Secretary of State's duty to keep the possibility of prosecution under continuing review. The House of Lords endorsed the Court of Appeal's approach. The Court of Appeal said:
	"Once it is accepted that there is a continuing duty to review ... it is implicit in that duty that the Secretary of State must do what he reasonably can to ensure that the continuing review is meaningful ... it was incumbent upon him to provide the police with material in his possession which was or might be relevant to any reconsideration of prosecution".
	It went on to say that that duty ought to be expressed in statute.
	I am not convinced by anything that I have heard in the past three years, either in the report of the noble Lord, Lord Carlile, or from the Government on the Floor of this House, that that is what is happening. The Government give a certain amount of airtime to the desirability of prosecution, but operationally they are not seeking to make that a reality. We know that, quite apart from anything else, in practical terms quite a lot of people have just absconded from control orders. It is much more difficult to abscond from prison. That is the safest place for these people who threaten our security.
	I hope that the Minister will pay particular attention to those issues. It is vital that we can review all these matters when the Counter-Terrorism Bill comes to your Lordships' House. I would like the Minister to confirm that that is what we will be able to do.

Lord West of Spithead: My Lords, I thank all noble Lords who have contributed so powerfully to this debate. I shall try to cover all the points raised. If I do not manage to do so, please come back to me, and I shall try to do so in writing.
	It is an unfortunate fact of life that when explosions are not going off and we are successfully stopping attacks, the nation as a whole and people in general tend to forget the threat that exists. That is very British and very commendable in many ways, but, equally, recent convictions of terrorists demonstrate the magnitude and nature of the threat. The chilling brutality of some of the plots that have been unwound during the past seven months—the aspiration to use a dirty bomb, the targeting of large shopping centres, nightclubs and our transport infrastructure, and the attempted kidnap and beheading of a member of our Armed Forces—highlights the severity of the threat that the UK faces. That threat ranges from the possibility of beheading one individual to inflicting mass casualties. I take this opportunity to thank the police, Special Branch, the Security Service and ordinary private citizens for their work in thwarting these plots. I have no doubt that their professionalism and dedication, and what has been achieved even during the past seven months, have saved hundreds—I do not want to exaggerate because it is important not to exaggerate threats—and probably thousands of lives. We have to ensure that they continue to be provided with an across-the-board toolkit to counter the threat.

The Earl of Onslow: The Minister said, and I have no reason to doubt him, that large numbers of plots have been aborted. How many prosecutions have resulted per plot? There must be a plot/prosecution ratio. If hundreds of plots have been aborted, there should have been more prosecutions. I am fishing for information; I am a seeker after the truth.

Lord West of Spithead: The number of plots in the past 12 months is about 15. Those plots would have involved some of the issues that I touched on. I have no doubt that that scale of casualties would have ensued.
	The noble Earl asked a precise question about Northern Ireland. I am afraid that Northern Ireland is not nastier than this. The Irish terrorists had a focus in what they were trying to do—we might not have agreed with their methods—and they were generally not trying to kill as many civilians as they could. Northern Ireland was different in its scale and nature.
	I disagree with the amendment of the noble Baroness, Lady Miller of Chilthorne Domer. As noble Lords will be aware, the Counter-Terrorism Bill was introduced to Parliament on 24 January. I explained in my opening speech that the Bill, as well as proposing a number of measures to strengthen the policing of control orders, will give noble Lords extensive opportunity to debate control orders more generally and to table amendments to the Prevention of Terrorism Act. I hope that that reassures the noble Lord, Lord Kingsland, also.
	I look forward to debates on the Bill, which will be valuable. What has continually come across to me is that all of us want to achieve the same thing, which is the safety of the British people. It is a question of exactly how we achieve that without removing the important freedoms that we have talked about and playing into the terrorists' hand by destroying our way of life, which is exactly what they are trying to do.
	We do not intend for control orders to become our default position. They are very much a second-best option. As I said a number of times, we wish to prosecute terrorists. They are criminals—I object sometimes to calling them terrorists—and they should be behind bars, which is without doubt the best place for them.
	We cannot always achieve that. We are in a very strange and difficult situation—I do not think that we have been in a comparable situation in the past 10 or 20 years—where we cannot take the risk of allowing these people to achieve what they want, because the results are so devastating. They are aiming at mass casualties. When we move on to dirty bombs and CBRN—again, one must not scaremonger—it becomes even more important to move quickly, which raises all sorts of difficult issues.
	Yes, we want to prosecute terrorists first and have them behind bars. If they are foreign, let us get them out of the country, which we do with assurances that we would never send someone to a country where there was a risk of torture or inhumane treatment. We obtain MOUs with the countries concerned to ensure that that would not take place. It is not the sort of thing that we would do as a nation.
	I am very glad to hear of the support given by the noble Baroness for post-charge questioning and intercept as evidence. There is a long way to go on that latter proposal; nine things have to be achieved before it could happen, but it is a good move forward. Will it give us a gold or silver bullet to achieve things, however? I fear not—and as Sir John Chilcot said, it would not have that much impact on control orders. That is sad and I wish that it would, because that would be wonderful—and I go back to the point that we would rather not have them.
	I believe that the Law Lords' judgment will support us. I shall come back to that in a minute when I have answered the specific points put to me by noble Lords opposite. The CT Bill will be very much looked at.
	The first thing that I should say on the Joint Committee on Human Rights is how welcome is the huge amount of very valuable work that it does. I am not saying that the Government agree with every single thing in the report, but it raises the right sort of issues that we need to look at. We will look in detail at a number of those and come back when we have done so with a response to the various points.

The Earl of Onslow: My Lords, can we have an undertaking from the Government that they will look very favourably on the recommendations for amendment to the Bill that are not yet in the Bill? Will they produce some amendments along the lines of those recommended in our report, because that would ease the passage of the Bill very considerably?

Lord West of Spithead: My Lords, can I think about that and come back to the noble Earl in writing? I am still enough of a newcomer to be wary of committing myself to something like that and being shot when I leave the Chamber, so I have to be a little careful on that sort of thing.
	The noble Earl also very kindly raised the issue of U-turns, or a battle "turn together", as I would prefer to think of it. I would rather think of it as flexibility. At one stage all sorts of options were being put forward, and I did not necessarily agree with all of them. Where we stand now is a much better position. We will have a chance to debate the matter in the House. I am very content with how the issue has gone.
	As for the report from the noble Lord, Lord Carlile, I am very glad that we got it out before the debate. We did not achieve that last year, which was not very clever, and we got it out this time as soon as was practical. We received it on Sunday 10 February, approved it on Thursday 14 and it was laid before the House on 18 February. I take the point that it would have been better if it had been before that, even, but we did as best we could to get it out.
	The noble Earl and the noble Lord, Lord Kingsland, raised the point about controlees who have absconded, saying that therefore this could not be that tight a system. One could look at that in a rather different way, because possibly those controlees have done a deportation with assurances without us having to do it. However, I am being a little bit cheeky there because we are not sure exactly where they are. It is difficult to talk about precise circumstances.
	The noble Earl asked about exit strategies. We look at those every quarter and we take them very seriously; we want an opportunity to do that. From the fact that no controlees have been prosecuted, which a number of noble Lords mentioned, it could be argued that the system works and that we have stopped them being so deeply involved in what they are trying to achieve. I have to be very careful not to talk specifics, but I refer to people who are encouraging and training other people to go abroad and kill coalition forces—to kill our people who are doing their duty for this country abroad. If we can stop them doing that, slowly change their view and make them decide not to do it, that would be an achievement.
	The noble Earl got a little confused on figures. There is a figure of 31, which is the total number of people ever subject to control orders; 11 is the current number and 37 was the number of people prosecuted in 2007, as I have already mentioned.
	The noble Baroness, Lady Stern, again talked about the Joint Committee on Human Rights. As I have mentioned, we will be looking at this in great detail. She made a very useful contribution and raised important points that we need to look at.
	In terms of the review of mental and physical health, we take the impact of the control orders on individuals very seriously and we seek representations from them about the impact of the order. We give consideration to the unintended impacts on their families. We do not underestimate that these are difficult and serious things, but we are dealing with unpleasant and unfortunate affairs—things that are not particularly nice. In terms of the review, the individual can present their own medical evidence. We sometimes choose to obtain our own medical reports, if we are particularly worried, and they are considered by the court as part of the process. We take mental and physical health very seriously and continually check to make sure if there are any problems. I hope that answers that particular case.
	We were disappointed with the High Court decision on Ceri Bullivant. The court accepted that the decision to make a control order was justified. I welcome that Mr Justice Collins said that the Secretary of State's decision to make a control order was justified and that there were reasonable grounds for the relevant suspicion.
	I will turn to the point about the 16 hours in a moment.
	Whenever closed material is involved, the special advocate system ensures that the interests of the appellant are fairly represented without compromising sources. It is important that we do not compromise those sources. The system was supported by the House of Lords judgment.
	My noble friend Lord Judd rightly gave a clear exposition about how important it is that we balance our rights and our freedoms—all the things we hold dear within the nation—with the ability to ensure security. I could not disagree with what he said, but actually we have to look after that right of our individuals which is their lives. Therefore, I believe that these things are balanced and appropriate. The danger of being counterproductive is absolutely right. If one looks at our counterterror strategy—which is being refreshed at the moment; I have put in a lot of work on that and it should be finished later this year—one of the key strands is known as the prevent strategy. One of the things we are looking at is exactly this balance of making sure that we are looking after our people and not making things much worse.
	There is no doubt that the rights of our people are absolutely paramount. Our liberty and such things are so important to us, but we have to weigh all these things up, and we need this quiver of options to enable us to do what we believe is absolutely required.
	The noble Lord, Lord Teverson, raised the DWA issue. I hope that I have covered that. We would never send people to a country on that sort of base. I have touched on the issue of Sir John Chilcot. I do not think—I am sad to say—that this will be a silver bullet; it just will not be. We are working to persuade the European Court of Human Rights to reconsider current jurisprudence. We are negotiating deportation assurances with a number of countries. We want to make sure that we get those assurances because we would not deport unless we absolutely had them.
	I am most impressed with the noble Lord, Lord Kingsland. As a watch-keeping officer he has done most of the afternoon—both dog-watches—and he is now well into the first watch. That is a very long time to stay on deck. Of course, as ever, he eloquently expressed the point a number of noble Lords have made about this crucial balance between our freedoms and imposing these things.
	I touched on the importance of the forthcoming CT Bill, and I hope I have given assurances on that. We will be able to discuss all those points. One of the things that frightens me in the Chamber is that I am always surrounded by judges and people who know all these things. If I paraphrase what the noble Lord said about the House of Lords judgment, it is open to interpretation; I use that word because that is what naval lawyers always used to say to me when I was trying to come to some difficult conclusion. We may have interpreted it slightly differently from the way he has. As noble Lords would imagine, I think that the way we have interpreted it is absolutely right.
	The noble Lord also referred to absconding, which I touched on—I hope that I covered it—and the fact that we have not prosecuted anyone. As I say, perhaps that shows that the measure has been useful. I have great respect for the Security Service—this covers a point made by the noble Baroness—which assesses that these people are involved in terrorism-related activity and pose a risk to public safety. Without a control order they would be free to continue their activities. The Security Service believes that control orders help to prevent, restrict and disrupt individuals engaging in terrorism-related activity. What is the difference between that and normal surveillance? That is a difficult question and I cannot go into detail on that. However, the Security Service believes that these measures are valuable and important and I take it at its word. So often I find that I am asked questions here that I have asked. That reassures me although I do not know whether it reassures noble Lords. I have asked these questions. They are important and they are being looked at.
	I do not want to go on for ever but I reiterate that our preferred option is to prosecute—to put these criminals behind bars. Where we cannot do that if they are foreigners, we want to deport them. However, that does not change the fact that despite these improvements there are a small number of these people with whom we cannot do either of those things. I believe that control orders are the best of a lot of bad options available to us for dealing with these individuals. As was shown by the report of the noble Lord, Lord Carlile, they are used very selectively. They are used currently with only 11 individuals and have only ever been used with 31 people. They are only one of a package of different measures. The noble Earl said that the figure did not seem very high but we are doing many other things as well.
	I believe that not reviewing the Prevention of Terrorism Act would allow these individuals to continue to engage in terrorist-related activity and would put public safety at risk. That is a risk that the Government cannot take. That view is supported by the director-general of the security services and the Intelligence Services Commissioner. Therefore, I have no hesitation in commending this order to the House once again.

Baroness Miller of Chilthorne Domer: My Lords, I am very grateful to the Minister for his very full reply. I am also grateful to the House and the Government for allowing us latitude in the extent of this dinner-hour debate to enable us to explore these very important issues at length. We are lucky to have the Minister responsible for terrorism strategy in this House so that when we debate the Counter-Terrorism Bill we shall have the benefit of his expertise. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	On Question, Motion agreed to.

Criminal Justice and Immigration Bill

House again in Committee.
	Clause 105 [Extension of powers of non-legal staff]:

Baroness Scotland of Asthal: moved Amendment No. 116A:
	Clause 105, page 71, line 4, leave out "(2)(a)" and insert "(2)"

Baroness Scotland of Asthal: I wish to speak to government Amendments Nos. 116A, 116B, 116C, 116D and 180C and all the other amendments in this group.
	The government amendments respond to concerns voiced by the legal profession and Members of both Houses that the current Clause 105 would enable Crown Prosecution Service non-lawyers to appear in trials of potentially serious either-way offences that may be heard before the magistrates' court.
	Accordingly, the proposed amendments to Clause 105 will limit the trial element of the clause by restricting the statutory powers of Crown Prosecution Service non-lawyers, referred to as designated caseworkers, to undertaking trials of summary-only offences in the magistrates' court. This we believe will do much to address the concerns that have been raised in both Houses.
	A consequential amendment to the clause provides clarity as to the purpose and intention of Section 7A (2)(b) of the Prosecution of Offences Act 1985. This subsection relates to the subsidiary powers of a designated caseworker. The amendment widens the scope of the current subsection of the Act to include civil proceedings.
	We hope that, in the phrasing of these amendments, Members of the Committee will feel that we have gone a long way to address the anxiety, which is really predicated on everyone's desire to maintain a high quality of advocacy in the courts. I have written a letter setting out some of the history of designated caseworkers, a copy of which has been put in the Library of the House, but I hope that Members of the Committee have had a copy of it. Therefore, with the Committee's permission, I will not refer to all those matters of historical relevance. I will, however, address some of the concerns that have been raised; we have listened to their broad nature and believe that we can respond.
	Restricting the trial element of the clause to summary-only offences will remove the possibility, albeit remote, that the Crown Prosecution Service may have deployed a designated caseworker to prosecute a trial involving a serious either-way offence before the magistrates' court. This concern was voiced at Second Reading and the Government have now moved to address it. We have not sought to place such a further limitation in the Bill, as it is sensible to allow for the possibility that at some point in the future designated caseworkers may have obtained the trial skills and experience that make it desirable for them to expand into other trial work. To limit unduly the scope of the clause now, requiring further amendment in due course, would not, I respectfully suggest, be an effective use of parliamentary time. In addition, there is an effective statutory mechanism already in place in Section 7A(3) and (4) of the Prosecution of Offences Act 1985 that can be deployed to provide the required safeguard.
	The current Section 7A(3) and (4) of that Act places a statutory obligation on the Director of Public Prosecutions to issue general instructions that govern the nature and type of hearing in which a designated caseworker may be deployed. The Director of Public Prosecutions has assured me, and I can in turn assure the Committee, that the instructions would be amended to limit the deployment of designated caseworkers to trials involving summary-only offences that are non-imprisonable.
	The instructions will also provide guidance that will exclude certain categories of trials, such as those where there is a known technical defence involving complex legal issues and those cases that may be considered sensitive; for example, where there is a vulnerable child witness, an elderly person, a victim or matters of that sort that would require evidence to be taken by video link. Further, I have agreed with the Director of Public Prosecutions that should the Crown Prosecution Service wish in later years to extend the nature of trials that a designated caseworker may undertake, the Attorney-General, as their superintending Minister, must be consulted and satisfied that any extension is justified.
	I shall also address another concern voiced at Second Reading: that designated caseworkers are not subject to any external regulation. The Crown Prosecution Service acknowledges that concern and accepts that at a time of greater regulation of the legal profession it is important to introduce external regulation for designated caseworkers. Accordingly, I am pleased to confirm that the Crown Prosecution Service has reached agreement, in principle, that later this year designated caseworkers will be granted special membership of the Institute of Legal Executives. The institute will also work with the Crown Prosecution Service to accredit its current and future designated caseworker training programme. Membership will mean that designated caseworkers come within the institute's regulatory framework.
	On admission to the Institute of Legal Executives, designated caseworkers will be governed by its professional codes and in essence they will be in the same regulatory position as solicitors and barristers. To that end I can confirm that the Crown Prosecution Service and the institute are in discussion with a view to harmonising the current Crown Prosecution Service Statement of Ethical Principles, which is, in effect, the Crown Prosecution Service's comprehensive code of conduct and advocacy code. The institute will look also at how its regulatory and conduct regime can incorporate the CPS standards.
	One of the issues about which people were concerned was that designated caseworkers may be young slips of a thing. Doubtless, they are, when compared to this august House; but I understand that a majority, about 70 per cent, tend to be between 30 and 50—so they are young—and some 68 per cent are women. This has been an excellent way of trying to broaden diversity and we are much encouraged that many aspire to and achieve professional status as solicitors or barristers. One designated caseworker has reached the dizzy heights of Chief Crown Prosecutor. So these caseworkers are a real advantage to the legal profession as a whole.
	I hope that I have been able to reassure the Committee that this is a material advantage and we will keep the closest eye upon it. I should say that on taking over this issue, I scrutinised these provisions very carefully to assure myself that I could put them before the Committee without hesitation, and this I do. I beg to move.

Baroness Butler-Sloss: In making some observations on the government amendments put forward by the noble and learned Baroness the Attorney-General, I shall oppose the Question that Clause 105 stand part of the Bill, in which I am supported by other noble Lords. Listening to the noble and learned Baroness, I was to some extent relieved by the steps that have been taken. A lot of work has been done in a short time, but I retain some concerns and it is important that I express them.
	The use of non-legal advocates to prosecute in contested cases is an extension of the current rights of non-legal Crown Prosecution Service staff. It is helpful, and I am extremely grateful to the Minister and the Attorney-General, to have been kept in touch with the nature of all these proposals and, in particular, that it is not intended that non-legal Crown Prosecution Service staff would prosecute in cases that could lead to imprisonment. That takes the position a long way. But it is important to remember that even in cases in which someone will not go to prison, there is a stigma in a conviction and it is extremely important that those who prosecute should do that to a standard equivalent to those who are legally trained either as barristers or solicitors.
	There are criticisms, I have to say, and I have been told about them—some of them very recently—in relation to the way in which some non-legally qualified Crown Prosecution Service staff carry out their work. I understand that although the National Audit Office expressed the view that the Magistrates' Association was satisfied with the way in which the non-legal Crown Prosecution staff conducted the cases, that is not the view of many members of the Magistrates' Association. They are not, as I understand it, very satisfied: I am told that the Magistrates' Association shares the Bar Council's assessment that the proposal to extend the DCWs' powers is all about cost-cutting. They are concerned that poorly prosecuted cases lead to longer and more expensive trials—and, of course, more expensive appeals and increased court and knock-on costs. I understand that the Magistrates' Association gave a briefing paper to Peers in January, in which it said that it was opposed to this clause.
	It is also perhaps of some interest that the Bar Standards Board, a new organisation, has a consumer panel that has been in touch with the Bar Council. It comments:
	"The panel recognised the value of an independent "second look" at prosecutions by a lawyer before they proceed, rather than cases remaining wholly with a case officer who has undertaken the preparatory work. There is felt to be always the danger that, if a case worker has sole "end to end" involvement, they could develop a personal stake in the outcome and would also miss out on that independent review, provided by a lawyer, to assess the strength of the evidence. ... The panel would not want to see speed of outcome outweighing the quality of outcome.
	Given the importance we give to the fairness of the processes, and the quality of the work, the Panel did support the public interest concerns raised by the Bar Council".
	I felt it only appropriate to make those points on behalf of that board's consumer panel. Therefore the Magistrates' Association, the Bar Council and the Bar Standards Board's consumer panel are concerned.
	It seems to me to be, among other things, a matter of training and three sorts of training may be required: training in how to be an advocate as a prosecutor; training in important issues of conduct such as the pre-eminence of the duty to the court, and other matters of great importance; and the importance of the line manager. I express my concern that a Crown Prosecution Service employee who says that a prosecution should not proceed because it is inadequate, or that something is wrong with it will have to face the line manager to explain why that prosecution did not continue. So line managers will have to be trained—they may not be lawyers, but it will have to be explained to them that there is a duty on the prosecution not to proceed if the case should not go forward.
	I am comforted by the noble and learned Baroness the Attorney-General in that the ILEX code of conduct and that of advocates in the Crown Prosecution Service are now being seriously considered with a view to harmonising them, as I think the noble and learned Baroness said, with the rules and practice of conduct of the Bar and of solicitors. If we are to have non-legal Crown Prosecution staff conducting contested trials, it is clearly be important that they should be subject to the identical rules that apply to anyone else who is prosecuting. That, again, becomes a question of training.
	I remain concerned. Many of my concerns have been relieved to some extent, but I should like to see one particular thing in the Bill. I have had discussions with the noble and learned Baroness the Attorney-General, who tells me that it is unlikely to be included, but I am concerned that the Bill does not provide that Crown Prosecution Service staff who are not legally qualified would not be engaged in prosecutions which potentially lead to imprisonment. I should very much like to see that in the Bill. However, I am comforted by the fact that I was given the current codes of conduct for both ILEX advocates and Crown Prosecution Service advocates, and I am extremely grateful to the noble and learned Baroness for these. They are infinitely better than I thought they would be but they could be improved.

Lord Borrie: Perhaps I may contribute to this debate by saying something with which I am sure everyone will agree at once: it is most important that there are appropriate restrictions on those who are entitled to engage in advocacy in our courts so that they are suitably qualified and conform to necessary ethical rules when they are so engaged. It is also important that those restrictions are no more than are necessary and that they are proportionate to the needs of the particular situation or case.
	In my view, the government amendments to Clause 105—I stress, government amendments—are designed to ensure that the restrictions on who can appear are proportionate, and they are meant to enable designated caseworkers of the Crown Prosecution Service to act as advocates both in non-contested cases, in which they have been so engaged since 1998, and also, from now, in cases involving summary-only offences.
	In the light of discussions and in the light of the Second Reading debate, the Government have pulled back from the position that they originally put in the Bill—hence, the government amendments today. To deal with the concern of many, including the Bar Council, that designated caseworkers should not act as advocates if the trial may result in imprisonment, then it is intended, as my noble and learned friend the Attorney-General indicated, that the DPP will issue instructions under the Prosecution of Offences Act 1985 to limit for the time being the use of designated caseworkers to cases where imprisonment cannot result from the trial.
	That, of course, would enable some change at some future time so that, if designated caseworkers qualified and became fellows of the Institute of Legal Executives, they could act as advocates in more serious trials. However, Members of the Committee will have noticed that my noble and learned friend indicated that that should be subject to the qualification of the Attorney-General agreeing to the circumstances and the occasion of that extension.
	Using instructions would certainly be more flexible than if the Act, by virtue of amendments made at this or some later stage of the Bill, unduly restricted designated caseworker rights of advocacy. I noticed that the noble and learned Baroness, Lady Butler-Sloss, welcomed the fact that adherence to the Institute of Legal Executives code of conduct would be fine, particularly if it was harmonised upwards—that was not her word—to ensure that it complied with and conformed to the Bar and the Law Society codes of conduct.
	In summary, it seems to me that the advantages of the Government's carefully crafted amendments are threefold. First, fully-qualified lawyer resources can be concentrated on complex and serious crime. Secondly, the method of approach and the possible extension in the future of the trial advocacy rights of designated caseworkers will enhance the diversity of pathways into the legal profession. Of course, it is in the public interest to ensure wider access to the legal profession over a period of time. Thirdly, we should not, if the Government amendments are accepted, put too much in the Bill unduly to inhibit the development of advocacy rights of DCWs in the future because of the method chosen in the government amendments which would not put restrictions fully in the Bill.

Lord Thomas of Gresford: I totally disagree with the noble Lord, Lord Borrie, about not putting restrictions in the Bill. At Second Reading, I suggested that an ILEX qualification was the minimum that one would expect for DCWs who appeared in contested cases of any sort. I still think that that is the case. I also think it is very important that there be agreement on the standards to be employed by ILEX in looking at the way in which DCWs approach their job.
	I am unhappy that we have a letter of today's date setting out these proposals. This Bill has been around for some eight or nine months and only today we have proposals thrust on us with no chance at all to consult on or discuss them with interested parties. As a result, I shall reserve the position of these Benches on whether it will be necessary to table further amendments to this clause on Report. I shall consider very carefully, with colleagues and interested parties, whether that will be appropriate. The Government have come some way towards what is necessary, but there has to be a point where non-qualified lawyers do not have rights of audience and I am not sure that the line is being properly drawn in the terms of the letter that we have now received.

Lord Mayhew of Twysden: I want to record my complete agreement with everything that has been said by the noble Baroness, Lady Butler-Sloss. I am grateful for the manifest signs of revision and of hard work the noble and learned Baroness the Attorney-General has plainly put in since she took over. Like the noble Lord, Lord Thomas of Gresford, we need more time to consider the letter. I received a copy during the afternoon, for which I am grateful. It is very important that we do not rush this provision for reasons that are quite often missed. A prosecuting advocate in a magistrates' court is quite often the only lawyer present, apart from the court clerk. A very heavy responsibility rests on him or her to ensure that the prosecution is at all times fair and that the court is never misled. As the noble and learned Baroness, Lady Butler-Sloss, said, the primary and overriding duty of the advocate is not to the prosecuting authority, but to the court itself.
	I am grateful to see that the ambit of the designated caseworker's abilities will be restricted in the way in which we have been told this evening. None the less these cases will often be brought against people who are unrepresented. Their livelihood and reputation may well be at stake even though these are not now imprisonable offences. We should take account of the grave misgivings of the Magistrates' Association. As we were reminded yesterday, magistrates take 95 per cent of the cases tried in England and Wales. I think that it is in the order of 2 million cases every year. It is not just a question of being opposed, as it states in its briefing, which the noble Baroness, Lady Butler-Sloss, mentioned. It states:
	"We are strongly opposed to this provision".
	That is an extremely important point. I should like to hear from the Attorney-General whether there has been any consultation with the magistrates with a view to assuaging their concerns, which were unusually strongly expressed—that was the association's exact language. There has been some reassuring progress, which has not gone far enough to make me happy, but I am hoping that reassurance will be reinforced.

Lord Kingsland: I gather that noble Lords received this letter this afternoon but have not had an opportunity to read it until an hour or two ago. I pay tribute to the amount of work that the noble and learned Baroness has put into this matter, with the obvious degree of thought that she has consecrated to it.
	The position of the Opposition, like that of the noble Lord, Lord Thomas of Gresford, is to welcome the fact that the Government have moved considerably on this issue, but to reserve our position at this stage so that we can reflect further on the contents of the letter and consult with the parties with whom we have initially been talking.
	I welcome government Amendment No. 116B, which will restrict the trial element to summary offences only. As the noble and learned Baroness says in her letter:
	"This will remove the possibility ... that the CPS might deploy a DCW to prosecute a trial involving a serious either-way offence before the magistrates' court".
	As the noble and learned Baroness knows, many of us feel that DCWs should not undertake trials when imprisonment may result. She is reluctant to go one step further than Amendment No. 116B and put that in the Bill. However, she has found an ingenious alternative approach by means of Section 7A(3) and (4) of the Prosecution of Offences Act 1985. She explains that this section of the Act places a statutory obligation on the Director of Public Prosecutions to issue general instructions that govern the nature of the type of hearing in which DCWs might be employed. If the director wishes at a later stage to change these instructions, the Attorney-General must be consulted and satisfied that any extension is justified. The noble and learned Baroness assures us that the initial instructions that will be given by the director will be that DCWs can be involved only in trials involving summary-only offences that are non-imprisonable.
	Although I salute the skill with which the noble and learned Baroness has woven this tapestry, I am hesitant about the operation of the mechanism. I do not think that consulting the Attorney-General—this is no disrespect to the noble and learned Baroness or any Attorney-General who might one day stand in her shoes—is a sufficient guarantee to your Lordships' House. I would like inserted into the 1985 Act an opportunity for Parliament to consider a change of the general instructions, probably by an affirmative resolution.
	The debate in your Lordships' House tonight has ranged widely. With one hesitation about two of the things that the noble Lord, Lord Borrie, said, I agree with everything that noble Lords have said. It is especially important to underline a point made exceedingly well by both the noble and learned Baroness, Lady Butler-Sloss, and my noble and learned friend Lord Mayhew of Twysden. In quite a lot of these cases, the defendant will not be legally represented. We need to be sure that the designated caseworkers understand that their duty is to the court, not, or not primarily, to the prosecution. The point was especially powerfully made by the noble and learned Baroness that independent line managers must understand that. They must understand that, whatever view the CPS takes about the desirability of winning, there is a duty on the person who conducts that litigation over and above that institutional target. We need to be confident that that is not only well understood but operationally effective.
	I note from the letter that negotiations are going on over the ILEX code of conduct; I wish them well. I am inclined to the view of the noble Lord, Lord Thomas of Gresford, that the ILEX qualification is the minimum necessary. I understand the noble and learned Baroness's keenness to engage in providing for DCWs the new type of experience in magistrates' courts; but the desirability of developing the careers of DCWs cannot in itself be a key reason for doing what she seeks. I can see that it would have that effect, and I know that institutionally that effect is desirable; but I do not think that it can be the motive for making the change. It is a consequence of the change if there are other good reasons for making it. I therefore thank the noble and learned Baroness very much indeed for her letter. It was beautifully typed, and I have always admired her signature. I shall consider it intimately between now and Report, and I look forward to returning to these matters on that occasion.

Baroness Scotland of Asthal: I am so grateful to all noble Lords who have spoken, but I am particularly grateful to the noble Lord, Lord Kingsland, for his complimentary comments about the typing. I have always found the content of more interest.
	May I say how much I agree with and understand the basis of the concerns that have been expressed about these issues? I reassure the Committee about the way in which these matters are dealt with. Many noble and learned Lords will be aware that we have in recent times introduced a new procedure for charging, so that a legally qualified prosecutor—a lawyer—determines the nature of the charges that will be laid and therefore has an intimate connection with the preparatory stages of the case. The designated caseworker will therefore not work on their own but will be part of a team. The level of participation appropriate for a designated caseworker will then be determined. I say straightaway to the noble and learned Lord, Lord Mayhew of Twysden, that he need not be concerned that a lawyer's eye has not passed over the very precise issue of whether there should be a prosecution at all and, if so, on what basis. Qualified solicitors and barristers employed by and on behalf of the CPS remain available to designated caseworkers to assist them, so they are not cast adrift in that regard.
	I say, too, to the noble Lord, Lord Kingsland, that of course it is not part of our role to seek to develop the career of a designated caseworker, but he and I both, I know, have a firm belief that we should seek to diversify those who come into the profession, to the benefit of the public and others. This means that introducing those who may not have thought of becoming a lawyer when they left school has proved to be very successful. We know how professions can change. The noble and learned Baroness, Lady Butler-Sloss, knows only too well how one can rise through the ranks from registrar to Lord Justice of Appeal and then to President of the Family Division—something that we have all benefited from and would like to see more of. I therefore agree with my noble friend Lord Borrie that these provisions are well founded and balanced, and I hope that, on mature reflection, when the noble Lord, Lord Kingsland, has an opportunity to consider the content and not just the nature of the typing, he will find that we have a good solution to what appeared to be a knotty problem.
	I say, too, to the noble Lord, Lord Thomas of Gresford, that I understand that my noble friend Lord Hunt wrote on 8 February to the noble Lord, Lord Kingsland—a letter that was copied to the noble Lord, Lord Thomas of Gresford—providing details of the government amendments and the agreement with ILEX. He also wrote on 7 February, following up points made at Second Reading, so it is not quite fair to suggest that these matters have not been raised before. I take full responsibility for the letter. I knew that this matter would come to the Committee late, and I hoped in my common naive way that the letter might assist your Lordships better to understand the history, the nature, the content and the reasoning that the Government have put into coming to this resolution. I hope that the letter will do that in due course.

Lord Thomas of Gresford: This is the noble and learned Baroness's amendment, so she will have the last word. The letter assists us in showing how far she has got in her consideration, but there are other issues. There is a certain comfort in the fact that a lawyer will have looked at the charge, but the presentation of the case in court demands a knowledge of the laws of evidence, a knowledge of the ethics, and skills in presentation. We shall see whether those are all available. The noble and learned Baroness should also bear in mind that the clerk to the court does not have to be legally qualified, although in my youth—I dare say that it was not the case in her youth—the clerk to a magistrates' court was almost always a qualified lawyer, which certainly is not the case today. One envisages a situation where you have an undefended defendant, an unqualified prosecutor, an unqualified clerk and magistrates of experience and wisdom, no doubt, but not necessarily legally qualified to pick up the problems that can arise in the presentation of a case, and not necessarily in a position to understand the niceties of what is happening in front of them.

Baroness Scotland of Asthal: Of course I understand what the noble Lord says about that issue, but it is important to understand, too, as I said earlier, that this is a team analysis. It will look at the nature of the case. It will look at the quality of the evidence that is to be produced, all of which will have been viewed by a Crown prosecutor of legal experience. It will give guidance in terms of the briefs that are given to caseworkers to carry out this work. One of the factors which the prosecutors will look at is whether the defendant is or is not legally represented. These are issues which may determine whether a designated case worker does the case or some other individual.

Baroness Butler-Sloss: On this point, it is not so much the preparation that would worry me as what could go wrong in court. The noble and learned Baroness and I, and others in this House who have been lawyers and have practised in different courts, including the magistrates' court, know that the way a case is presented is not the way the case goes, and things go wrong. It is in the tricky, non-custodial type of case, but which will be of importance to the defendant, that something can go badly wrong.
	Two things worry me. First, at that moment there is not be a single lawyer in court, as the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Mayhew of Twysden, have pointed out. Secondly, if it goes wrong, will the line manager understand or will the Crown prosecution non-legally trained employee really go partly wrong because he is afraid of what will be said back in the office? Not being a lawyer, he will not have had that independence of training.

Lord Kingsland: I have a different point to make, which harks back to that made by the noble Lord, Lord Thomas. I am sorry that the noble and learned Baroness thinks that I have been rather churlish about her letter. I thought that I had gone out of my way to say how helpful it has been and how much we welcomed it. I do not wish her to be in any doubt about that.

Baroness Scotland of Asthal: The noble Lord need not trouble. I just know that I am back. I understand him perfectly and our good relations will be in no way tarnished by this evening.
	Training is important and, of course, all this is predicated on having excellent training and skills that can be developed. The process through which designated case workers entertain this work is really quite impressive. I want us not to forget reality. It is true that there are many qualified solicitors, barristers and professors of law who one would not necessarily say were the most erudite, effective and succinct advocates. It is a skill which the whole of the profession benefits from and has to constantly hone, and I do not suggest therefore that designated caseworkers fall into a different category.
	One has to bear in mind one further fact. If the Committee were to say that designated caseworkers as a group could not prosecute save in and except for those cases which are non-imprisonable and that was put in the Bill, those designated caseworkers who are currently qualified solicitors and barristers but discharge the role of a designated caseworker would, while they remain in that role, not be able to do contested work. I know that that is not what noble Lords would wish for, and indeed the Committee knows that full ILEX members are able to undertake any form of work in the magistrates' court. The way we have crafted this provision would enable designated caseworkers who are barristers and solicitors, and those who are ILEX members, in due course to do all forms of work, restricting the non-imprisonable and other forms of work to those who have appropriate training and skills but are not yet members of the profession. I hope that in due course this will be something with which we can all be content.

On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendments Nos. 116B and 116C:
	Clause 105, page 71, leave out lines 5 and 6 and insert—
	"(a) in paragraph (a)(ii), after "trials" insert "of offences triable either way"; (b) after paragraph (a)(ii) insert—"
	Clause 105, page 71, line 12, at end insert—
	"(c) for paragraph (b) substitute—"(b) any powers of a Crown Prosecutor that do not involve the exercise of such rights of audience as are mentioned in paragraph (a) above but are exercisable in relation to the conduct of—(i) criminal proceedings in magistrates' courts, or(ii) applications or proceedings falling within paragraph (a)(iii) or (iv).""
	On Question, amendments agreed to.
	[Amendment No. 116CA not moved.]

Baroness Scotland of Asthal: moved Amendment No. 116D:
	Clause 105, page 71, line 27, at end insert—
	"(5A) For the purposes of this section a trial begins with the opening of the prosecution case after the entry of a plea of not guilty and ends with the conviction or acquittal of the accused.""
	On Question, amendment agreed to.
	Clause 105, as amended, agreed to.
	Clauses 106 to 108 agreed to.

Lord Bach: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.
	House adjourned at 10.11 pm.